Wednesday, February 20, 2013

Supreme Court Appears to Back Monsanto in Patent Dispute

soybeansdna, biotechnology

I updated you guys yesterday on a fascinating case before the Supreme Court. As you have probably figured out, I am leery of the extremely broad legal protections given to IP in this country. I felt that the case was important enough that I posted it both to my political blog and to my tech blog.

Let's have an update on the arguments.

According to the New York Times, the arguments in Monsanto vs. Bowman seemed to go the way of the giant chemical and agricultural company. Apparently, the attorneys for Monsanto were allowed to speak at length whereas Mr. Bowman's attorneys were shut down. The justices outright told Mr. Bowman that the legal basis for his defense, namely the doctrine of patent exhaustion does not apply.

Although it seems that Bowman is unlikely to win outright, SCOTUS observers have been wrong before. The court may decide the case on narrower grounds that would not have pose such a huge threat to our long-term agricultural stability. Justice Breyer appeared to open the door for an exception with his comment "maybe three generations of seeds is enough", but it isn't completely clear what loophole that would allow. Perhaps the court could rule that Mr. Bowman intentionally planted seeds that he knew contained the genes resistant to Monsanto's herbicide Roundup, and there broke the patent. Perhaps if a farmer planted the seeds without any intention of using the patented seeds, then the patent might not apply.

Stay tuned for a ruling.

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