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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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I don't get it.
By Cargan Ricman on 2/20/2013 1:39:04 AM , Rating: 2
Ok, can someone please explain to me how Monsanto can successfully sue anyone and win?

If I was a farmer and I was sued by Monsanto for inadvertantly having their crap plant genes in my field due to natural seed migration or cross-pollination from neighboring fields, I'd just counter sue stating that I specialize in raising bona fide non-GM crops and that my farm/business has been severely damaged due to their crap GM seeds infiltrating my fields against my will/wishes and ruining my pristine non-GM crops! Since Monsanto has gone the extra mile to identify that their crap GM plants are now spoiling my once pristine fields, they should be held liable and be forced to come in and remove their crap from my land and pay me damages for all of my losses since I can no longer sell my crops as non-GM while their shite<sic> is contaminating my land. How is that not a winning legal argument?




RE: I don't get it.
By twhittet on 2/20/2013 3:54:14 PM , Rating: 3
Not sure why you were rated down, but - yes, that is actually happening. Organic farmers did try to sue Monsanto - for that reason, but mostly as a defensive reaction to Monsanto suing every farmer they can. I think they had more of a case than this farmer, but lost.

Monsanto has tons of money, has been lining the pockets of politicians and lawyers for many years - so they are not an easy foe to go against.


RE: I don't get it.
By chripuck on 2/21/2013 10:34:06 AM , Rating: 2
The problem with your scenario is burden of proof. It is not Monsanto's land therefore the burden lies on the farmers proving that Monsanto purposefully planted GMO crops on their lands.

The flip side, at least how it SHOULD operate, is that Monsanto should have to provide proof that the farmer purposefully planted their crops. In the case above, it appears the farmer sprayed his soy crops with RoundUp because he knew they could take it, hardly the actions of an unknowing farmer.


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