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Monsanto and Myriad are hopeful that the nation's highest court

Today nearly 20 percent of the human genome is patented.  Thousands of genetically modified plants and animals are patented as well.  But those patents could soon be invalidated, depending on how the Supreme Court of the United States (SCOTUS) rules in a pair of key cases it will hear later this year.

I. Myriad and Patenting the Human Genome

The first case shaking the biotechnology agency is a lawsuit filed by the Association for Molecular Pathology, the Public Patent Foundation (PUBPAT), and the American Civil Liberties Union (ACLU) against Myriad Genetics, Inc. (MYGN) and the University of Utah Research Foundation.

Myriad and the University of Utah had patented a pair of genes -- BRCA1 and BRCA2 -- which are associated with breast cancer.  They, and other human gene patent holders claim that isolating human genes makes them patentable, despite the same gene appearing in nature.  They feel that their patents entitle them to block research on the human genes, unless various companies and research institutions pay their fees.

BRCA Genes
Myriad "owns" two critical human genes involved with breast cancer.

Critics say this approach is unethical and immoral.  They also argue that it illegal under provisions that "human organisms" [source] and "laws of nature" [source] are not patentable.

In 2010 Judge Robert W. Sweet, a federal judge with the U.S. District Court for the Southern District of New York, sided with the plaintiff's argument, ruling that human gene patents were invalid.

Now SCOTUS must decide whether to toss that decision, preserving the thousands of gene patents, or uphold it, throwing the biotech industry into chaos.

Oral arguments in the case will begin April 15.

II. Monsanto and Second Generation GMO Seed

The other significant case involves a 75-year-old southwestern Indianan farmer's case against Monsanto Comp. (MON) regarding genetically modified organism (GMO) crop lines.  Lawyers for Vernon Hugh Bowman argue that companies like Monsanto should not be able to stake ownership to the offspring of GMO crops capable of reproduction.

Monsanto argues that ruling second-generation crops patent-free would "devastate innovation in biotechnology", commenting, "Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies."

One acre of GMO soybeans can produce enough beans to seed 26 acres of crop.  In other words if the SCOTUS sides with Mr. Bowman, GMO seeds may be a one-time purchase for careful farmers.

Farmers are upset about Monsanto's lawsuits. [Image Source; AP/Greenpeace]

Currently, Monsanto requires farmers to sign contracts not to save seeds.  It has filed 140 patent lawsuits against 410 farmers and 56 small farm businesses, according to The Center for Food Safety.  While most of the cases were settled out of court, Monsanto scooped up $23.67M USD in judgements from the farmers who did try to fight it in court.

Mr. Bowman's case revolves around Roundup, a popular pesticide used on 90 percent of soybean crops in the U.S.  Monsanto produced a special patented breed of soybean dubbed "Roundup Ready", which is immune to the herbicide.

Traditionally Mr. Bowman paid for a preliminary order of Roundup Ready soybean seeds each year.  But for his second crop he bought commodity soybeans from a local grain elevator, as that crop is more often prone to fail and Monsanto's seed is expensive.  The elevator grain consists of a blend of soybeans, most of which are Monsanto-derived crops.  Mr. Bowman argues he should not be held accountable for using that crop.

In 2007 Monsanto sued Mr. Bowman and in 2009 the U.S. District Court for the Southern District of Indiana ordered Mr. Bowman to pay $84,000 USD in damages. That decision was upheld [PDF] in 2010 by the U.S. Court of Appeals for the Federal Circuit.

III. Monsanto Case Takes Different Angle: Patent Exhaustion

Unlike the Myriad case, the Monsanto case does not look to directly challenge the patentability of GMOs.  Rather, it argues that GMO crops should be eligible for patent exhaustion -- once [their seeds] are sold, the patent should no longer apply, they argue.

Mr. Bowman has done much of the research for the case himself on a library loaned computer (as he does not own a PC).  He is represented by Mark P. Walters of the firm Frommer Lawrence & Haug, which took the case on pro bono.  Despite the firm offering its services pro bono, Mr. Bowman has still been forced to pay over $31,000 in legal fees.
Vernon H. Bowman
Vernon H. Bowman [Image Source: Aaron P. Bernstein for The New York Times]

In an interview with The New York Times, he states, "I was prepared to let them run over me.  but I wasn’t getting out of the road."

A date for the arguments has not been set.

Admittedly the cases are very different in several ways, but cumulatively they should prove a critical test of whether companies can reliably (and legally) patent living organisms.

Sources: SCOTUS [1], [2], The New York Times

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By tng on 2/19/2013 4:12:29 PM , Rating: 5
I would say that common sense should prevail here (assuming that I have it) and since the genes were not necessarily created by these people and are, in a sense, prior art, they are not patentable.

Myriad and the University of Utah had patented a pair of genes -- BRCA1 and BRCA2 -- which are associated with breast cancer.
Since the genes responsible for this are now the property of an entity, can that entity be sued for the illness that the genes created? Not sure, but just throwing stuff out there.

RE: Riduculous
By DNAgent on 2/19/2013 4:36:49 PM , Rating: 3
Nah, they're going to sue everyone for making new BRCA genes when they reproduce and for using BRCA genes to repair DNA in everyday life.

RE: Riduculous
By Solandri on 2/20/2013 3:13:26 PM , Rating: 2
I don't have a problem with it if they apply a common-sense rule: With ownership comes responsibility. If I "own" a gene which causes breast cancer, then I am financially responsible for all the harm that comes from breast cancer. If I "own" a gene which causes plants to be resistant to Round-Up, then I am financially responsible for all the harm it causes (e.g. it infects fields of orgranic crops trying to remain GMO-free).

You cannot reap the benefits of the good from owning something, while simultaneously disavowing yourself from any harm which originates from that same something.

RE: Riduculous
By mutatio on 2/20/2013 4:48:05 PM , Rating: 2
I would agree. The issues I see with patented genetics, GMOs, and even nano technology is that everyone wants profit without consideration for the cost. For nano tech, one of the first questions that occurred to me was, "Okay, so what happens to all of these particles in our environment and more specifically, within us?" It wasn't too long before some studies were published indicating that, indeed, nano particles were accumulating or becoming lodged in tissue and cells. Needless to say, this is not a good thing if there is no complementary technology for insuring safety and or "harvesting" of what is put out into the world. With GMO crops we still have an uncertain future with them as some have been highly problematic (read: toxic) and, as noted, we run the risk of these unpredictable genetics being spread to non-GMO plants. With all of that said, if this sort of stuff gets the green light from the Supreme Corp., um, I mean Supreme Court, we'll be on our way to a Blade Runner future where everything will be owned by some corporation. Meh.

RE: Riduculous
By Trisped on 2/19/2013 5:21:52 PM , Rating: 2
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer.

The researchers need a way to guarantee that they are compensated for their research. That being said, patents do not seem to be appropriate. They did not create the gene, they found it.

The genetically engineered crops is a different matter. If I understand correctly, Monsanto create the gene group which provides the desired properties (resistant to Roundup). What I do not understand is why Monsanto is suing Mr. Bowman. He paid for his first crop from Monsanto, and the second crop he paid for and received from a different supplier.

If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission. Better yet, they should upgrade their contract to require growers to not sell to individuals who will resell it as seed. They could even make the contract similar to those used in open source projects, requiring any user (or in this case purchaser) of the original seeds or the results of the growth to acknowledge and accept the agreement.

RE: Riduculous
By tng on 2/19/2013 5:35:31 PM , Rating: 4
If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission
Well, Monsanto has a history of suing people who are less able to defend themselves thinking that an example needs to be set or maybe they are just mean. Suing a co-op or larger corporation is not what they like to do, corporations are more able to defend themselves.

RE: Riduculous
By tng on 2/19/2013 5:39:43 PM , Rating: 2
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer.
Yes there were resources used to research this, but if it was only the University of Utah involved, they would just publish. The problem is when private industry becomes involved there has to be a profit involved.

There are some good uses of government grants and this is one of them.

RE: Riduculous
By Hakuryu on 2/19/2013 6:07:04 PM , Rating: 5
Neighbor plants Monsanto, you don't, in a couple of years you get sued for having seed with Monsanto characteristics. This is how Monsanto operates; even being accused of cheaply selling seed to neigbors of people who refuse to buy their seed, so in a few years they must buy Monsanto or get sued after pollination does it work. Lots of good docs about this.

RE: Riduculous
By bah12 on 2/20/2013 12:04:39 PM , Rating: 2
Also check out the show Food Inc. interesting documentary about the food industry. Absolutely amazing how ruthlessly these guys protect their seed.

RE: Riduculous
By FaaR on 2/19/2013 7:09:10 PM , Rating: 3
If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission.

It's not their crop when bees - whom have existed for millions of years - cross-pollinate regular crops with monsanto-patented pollen.

If this was to be taken to the extreme that shitpile companies like Monsanto want, they would eventually be able to tax every farmer for every harvest, in perpetuity, simply because GMO crops pollute existing, as well as wild strains of crops.

Imagine having to pay every god damn GMO corporation who ever released seeds with patented genes on the market. What a nightmare - for us. It's the ultimate wet dream of Monsanto executives.

RE: Riduculous
By DiscoWade on 2/19/2013 7:24:53 PM , Rating: 2
The funny thing is I know two farming families who think Monsanto is the best thing to farmers since the plow. I'm not saying Monsanto is an upright respectable company, but it is my opinion, talking to the farmers I know, that Monsanto isn't as bad as their reputation states. As the saying goes, there are three sides to every story: What he says, what she says, and what really happened.

Personally I hope the Supreme Court invalidates patents on genetics. There needs to be another way to compensate and thus encourage companies to do genetic research. I think patenting the building blocks of life is fundamentally wrong. Where will it end?

RE: Riduculous
By lilBuckwheat on 2/20/2013 7:13:33 AM , Rating: 2
Are your friends from India?

The third side to this story drank insecticide in his own barren field.

RE: Riduculous
By Strunf on 2/20/2013 7:43:31 AM , Rating: 2
Monsanto is not so bad if you're in bed with them, they make plants that are more resistant to plagues and hence the farmer using them doesn't need to spray as many chemicals on their crops as everyone else, this is a good thing, it only turns bad when you realize your plants don't live in a contained space and that you are also contaminating the plants nearby (actually it could be kms away), and it turns even worst when Monsanto actively goes after your neighbor cause he was unlucky enough to be a neighbor of someone using OGM crops.

The least Monsanto could do is to offer the neighbors at a FRAND price new seeds (OGM free) each year in a way that they will not use the OGM contaminated seeds from last year.

There are three sides of the story but not the ones you point, there are the farmers that happily use Monsanto seeds, the ones who chose to not use them and the others who don't care about it, the last two are the ones that will eventually get Monsanto knocking on their doors claiming they are using seeds with their patented genes.

RE: Riduculous
By GotThumbs on 2/20/2013 8:21:19 AM , Rating: 2
Yes, but I've got a patent pending for Bee's, so any farmer, land owner whose crop/flowers are pollinated by a Bee will owe me 5 cents each instance.

I should have about 10,000 cases filed in US courts by summers end.

(Sarcasm of course)

RE: Riduculous
By 91TTZ on 2/20/2013 3:44:56 PM , Rating: 3
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer. The researchers need a way to guarantee that they are compensated for their research.

"There is a single light of science, and to brighten it anywhere is to brighten it everywhere."

The thing about science is that discoveries should be public. If anything, the scientist who discovers something gets to put their name on it.

Can you imagine if someone patented the existence of Mars or Neptune? Or what about the atom? It took a lot of researching to discover these things.

RE: Riduculous
By Reclaimer77 on 2/19/13, Rating: 0
RE: Riduculous
By roykahn on 2/19/2013 7:30:42 PM , Rating: 5
Must you bring Obama into EVERY topic? Do you have nightmares about him? Have you customized your keyboard so that there's an Obama key to save you 10% off your total typing time?

And just to stay on-topic: down with Monsanto!

RE: Riduculous
By tng on 2/19/2013 8:48:44 PM , Rating: 2
And just to stay on-topic: down with Monsanto!
Do you have nightmares about him?
Ha! Wait... You Don't?

RE: Riduculous
By inperfectdarkness on 2/20/2013 12:15:58 AM , Rating: 5
I agree. F**k Monsanto. Name me ONE good thing this corporation has done in its entire existence.

Meanwhile, I present evidence:

A. Lawsuits against farmers whose crops were contaminated by WIND blowing from other farms.

B. Agent Orange

C. This article

RE: Riduculous
By chripuck on 2/21/2013 10:26:24 AM , Rating: 2
Ummm, they've created disease and drought resistant crops that require less resources to grow effectively. They help farmers make more money and help more people have food to eat.

While I don't like the idea of them suing non-Monsanto farmers due to cross pollination, they put a lot of money into researching and developing these strains of crops. This is not some clear cut line in the sand here.

That being said, the BRCA genes is complete crap. It is madness that you can patent a naturally occurring gene.

RE: Riduculous
By roykahn on 2/21/2013 7:42:48 PM , Rating: 2
I bet a lot of the research and development was funded by the government. They also use as much intimidation they can to bully farmers into using their products. As others have pointed out, there is much information about their bad behavior. They are definitely NOT in the business of helping farmers make more money. Just like any corporation, they are in the business of maximizing their own shareholders' wealth.

According to Monsanto, there IS a clear-cut line in the sand. If they even sniff an opportunity to sue someone then it's full steam ahead, captain!

RE: Riduculous
By GotThumbs on 2/20/13, Rating: 0
RE: Riduculous
By Reclaimer77 on 2/20/13, Rating: 0
RE: Riduculous
By GotThumbs on 2/20/2013 8:14:30 AM , Rating: 2
I agree with your statement about these people having "Not" created these genes and thus should not be able to patent them. It that were the case, then I'm going to start patenting the earth, dirt, grass, etc..

Unfortunately your statement about "Common Sense" prevailing is not as strong. Our Supreme Court has not displayed common sense as they once did and our presiding president has no hesitation in public intimidation of this branch if they don't see it his way IMO. We'll have to wait and see on this.

Common sense in our society has been failing for years now IMO.

Best Wishes,

RE: Riduculous
By Reclaimer77 on 2/20/2013 3:30:59 PM , Rating: 2
Well I think we have to be fair and see Biotech's side of things. They are spending billions in research and development of treatments, not for the good of mankind, but to make a profit.

Now of course I'm not saying they should be able to patent human genes. There has to be some way to guarantee the profit motive, while still being sensible.

We have to be careful here. If we destroy the profit motive, there will be little incentive to pioneer medical treatments and the research field will stagnate. We can't have that imo.

RE: Riduculous
By chripuck on 2/21/2013 10:28:54 AM , Rating: 2
The BRCA gene patent is ludicrous. You patent the treatment, not the discovery of the gene that creates the problem. Simply isolating the gene is just part of the process of creating a treatment/cure. It would have been like Henry Ford patenting hydrocarbon ignition while he was inventing the car.

RE: Riduculous
By Paj on 2/20/2013 8:21:40 AM , Rating: 2
I would say that common sense should prevail here (assuming that I have it) and since the genes were not necessarily created by these people and are, in a sense, prior art, they are not patentable.

Agreed. It's like patenting lightning, or the Higgs Boson.
Patenting the lightning rod? Or the ATLAS detector? Both perfectly acceptable uses of the patent system.

For an excellent take on what happens when biotech gets out of control, read Paolo Bacigalupi's Pump Six - great collection of short sci fi stories. This case sounds pretty similar to some of the scenarios mentioned there.

"It's okay. The scenarios aren't that clear. But it's good looking. [Steve Jobs] does good design, and [the iPad] is absolutely a good example of that." -- Bill Gates on the Apple iPad

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