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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.
[Image Source: AU-KBC RESEARCH CENTRE]

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.

Monsanto
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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These two stories are not related
By Varun on 2/19/2013 4:48:22 PM , Rating: 2
Not sure why they are even together. The lawsuit is different.

I hope the supreme court does uphold that you can't patent the human genome. It's something that was invented by nature. If you didn't invent something then you shouldn't be able to patent it. The process to map it? Sure (Amd I am sure it has been patented).

The Monsanto thing is different. What they created was something that wasn't in nature to begin with. If you sign a contract not to hold any seeds, then you signed a contract. If you don't agree with the contract, there is nothing forcing you to buy the seed. You can always buy regular soybean and canola seed. There's even a big market for non GMO products. This is the only way for Monsanto to recoup the huge R&D they put into the crop. It's not like they can recoup it on the RoundUp - that patent has already expired.




RE: These two stories are not related
By fic2 on 2/19/2013 5:03:25 PM , Rating: 2
But, Bowman didn't hold the seed. He bought it from a grain elevator. Is it Bowman's fault that it contained Monsanto seed?

quote:
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.


RE: These two stories are not related
By ppardee on 2/19/2013 7:08:29 PM , Rating: 2
The problem with Monsanto is they can come and check your crop to see if you're using their seeds even if you haven't signed a contract with them. If your land has a single Monsanto plant on it, they can sue you without even having to prove that you deliberately planted it. From what I understand, they are doing this frequently, then making you pay them for their crops whether you use them or not.

I have no problem with people who signed a contract not to hold seeds being prosecuted for holding seeds. It's the mafia tactics I have a problem with, and the patent is what allows them to do it.


RE: These two stories are not related
By Strunf on 2/20/2013 7:47:54 AM , Rating: 2
Exactly, the pollen containing their patented gene can travel kms and pollinate someone else crop without them even knowing it, then Monsanto comes around and you either pay or "burn your field to the ground"!


RE: These two stories are not related
By Varun on 2/20/2013 8:12:38 AM , Rating: 2
Hmm this story is more fishy than first reported here. It seems the farmer bought the soybean at the elevator, and sprayed roundup on it knowing it would be mostly RoundUp Ready. What kind of a farmer would take that kind of a gamble? If he was wrong, his entire investment would be wiped out.

I think he's trying his best to plead innocent but it certainly seems he knew what he was doing. I find it hard to believe an elevator would sell him this knowing the repercussions.


By hero_of_zero on 2/23/2013 1:35:14 PM , Rating: 2
Not even that what stops Monsanto having a few guys on the pay roll that wants a nice bonus check that goes into someones fields at night that they have issues with that don't use Monsanto seeds and toss a few hand full of seeds into the person fields?Farmers that have fairly large fields it be hard to see or even prove that someone did it to start with.


RE: These two stories are not related
By Varun on 2/20/2013 8:04:45 AM , Rating: 2
Actually that's a fair point. I've heard of several cases where farmers claim that their field got contaminated by their neighbors. I guess that's what the courts are for. The biggest issue with the courts is the cost though - and time.


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