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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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RE: Riduculous
By Reclaimer77 on 2/19/2013 6:23:14 PM , Rating: 0
Well we see how much common sense won out when they ruled on Obamacare. Don't hold your breath on this.


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
quote:
And just to stay on-topic: down with Monsanto!
LOL
quote:
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
“We do believe we have a moral responsibility to keep porn off the iPhone.” -- Steve Jobs














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