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Implications of the Monsanto case

Editor's note: The U.S. Supreme Court ruled May 13 in favor of Monsanto in a case involving a farmer replanting the seeds of genetically modified soybeans.

Paul Heald is a University of Illinois law professor and an expert on patent and copyright issues who has published research on the intellectual property aspects of seed varieties. In an interview with UI News Bureau Business & Law Editor Phil Ciciora, Heald discusses the verdict and what it could ultimately mean for other "self-replicating technologies."

Does the court's ruling in the case (Bowman v. Monsanto Co.) open the door for other types of agricultural lawsuits?

I don't think so. The ruling was very narrow on the law itself, and the farmer, Vernon Hugh Bowman, had a very weak case, which was why it was a 9-0 opinion in favor of Monsanto. Everyone pretty much knew that Monsanto was going to win, and it seems like Bowman himself knew that he was exploiting a loophole.

Really, Bowman's argument about the first sale doctrine was weak. The court is correct in that the first-sale doctrine is about obtaining something legally and then having the right to transfer it to somebody else afterward. So, Bowman could have bought these seeds and sold them to someone else. He also could have given them away for free or burned them. The first-sale doctrine lets you do what you want with what you've purchased, but it doesn't let you make more of whatever you originally bought.

How did this case threaten the "incentive for invention" aspect of patent law?

It's clear that the court is of the opinion that these patents would be essentially worthless if people could take advantage of a self-replicating loophole like Bowman did. The court may be right, but in 1970 Congress passed non-patent protection for seeds under the Plant Variety Protection Act and included a seed-saving provision for farmers. At least at that time, Congress did not think that seed saving would destroy incentives to invent new seeds.

Another interesting aspect of this case is that the seeds go "off-patent" -- meaning this technology falls into the public domain -- this October. In other words, Monsanto completely loses its patent on these seeds, which means that anybody in the country would be able to make them -- and what Bowman did would be completely legal beginning this fall.

What's also interesting is, after the seed becomes part of the public domain, will we see competition from generic seed manufacturers? We see that sort of action in the pharmaceuticals industry -- as soon as a certain drug goes off-patent, the generic manufacturers jump in as quickly as they can. So there's an opportunity for real competition here, and it will be interesting to see if and how fast that develops.

This case was ostensibly about soybean seeds, but what implications do you foresee it having for other so-called "self-replicating technologies"?

The broader implications of this case do indeed have to do with self-replicating technologies, and whether or not they should be protectable. But the problem here is that this particular technology is not self-replicating. It does take the interference of man to plant and water seeds.

Patent law is about interpreting the patent statute, which was passed by Congress. If you go back to the Plant Patent Act of 1930, which was the first patent act concerning plants, Congress prevented infringers from taking cuttings from fruit trees or rose bushes or other kinds of plants that grow by cloning.

So if Congress clearly felt in 1930 that it should be illegal for someone to cut a branch off of a living thing and graft it onto another living thing so that it can replicate itself, it seems just as unlikely that Congress has a problem protecting genetically altered seeds.

Reprinted with permission from the University of Illinois News Bureau.

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