Seed rights versus patent protection

The Bowman vs. Monsanto hearing at the U.S. Supreme Court is big news in the United States, and we are seeing ripple effects here in Canada. 


An interesting byproduct of this case is how interest groups are re-framing it in the media. 


Although some headlines might suggest otherwise, this case is not about farm-saved seed. Instead, it is about something called the “patent exhaustion doctrine,” which applies to several industries and companies, even outside agriculture.


Indiana farmer Vernon Bowman, the plaintiff, argues that in the case of Monsanto’s patented soybeans, the company’s rights were terminated after the first sale, and those rights should not extend to progeny that embodies Monsanto’s patented technology. 


By his own admission, Bowman bought commodity soybean seeds from a grain elevator, knowing that they were likely to contain the patented technology, and deliberately planted them on his farm — not for one year, but for seven.


When I refer to interest groups, I’m talking about non-government organizations, the ones that have an axe to grind with “big ag.” 


Many of the stories prominent in the media are commentaries from representatives of the Center for Food Safety (CFS) and Save Our Seeds (SOS). These interest groups take issue with genetically modified food in general.


Both groups challenged Monsanto last December, using a “friend of the court” brief they filed in support of Bowman. In effect, they rolled this recent case into a “‘save the seeds” campaign, spinning stories into compelling themes such as “who can own life?” and “seed rights of farmers are threatened.” 


In one of her most recent articles, CFS and SOS chief executive officer Debbie Barker stated: “The Supreme Court ought to rule in favour of Bowman so that instead of farmers becoming modern-day serfs of agrichemical companies, they can regain traditional seed rights.” 


What exactly does Barker mean by “traditional?” Farmers have been using certified seed as part of their operations for more than 100 years in Canada. Few farmers, if any, breed seed these days.


In his opinion piece in CNN’s Eatocracy, Indiana farmer Brian Scott said: “If we wanted to breed our own varieties, I’m sure we could, but I look at it right now as division of labour. Seed companies are great at coming up with great products, and farmers are great at turning those products into a bounty of food, feed, fuel, and fibre.”


Modern seeds help farmers extract higher yields and are also an important part of their risk-management strategies. 


Not only do farmers benefit from clean seed, but new seed varieties also allow them to plant the best, locally adapted and productive package of genetics available. 


For the record, nobody forces a farmer to agree to the terms of a seed purchase. If farmers wish to forgo the advantages of a certified seed variety, they can use older, unrestricted crop varieties. There are hundreds of varieties in the public domain — off-patent and non genetically modified — that can be freely accessed. 


The genesis of the Feb. 19 Supreme Court hearing lies in other lower court cases that have examined the issue of patent exhaustion for many months. All of which, by the way, have resulted in the courts’ ruling in favour of Monsanto. 


What would it mean if the Supreme Court reverses lower courts’ rulings in its decision? Let’s look first at the value of patents. 


Patents are a provision of exclusive rights granted to an inventor for a limited period of time. In exchange, the inventor must publicly disclose the invention. 


Companies need to protect their inventions with patents so that they can generate revenue to recover their development costs and return a profit for shareholders. 


It takes more than 10 years and more than $100 million to bring a GM crop variety to the market. Why would anyone invest in developing these varieties if they couldn’t protect that investment?


It is important to note that protecting crop varieties is not limited to the private sector. The public sector also protects its investments through intellectual property rights (IPRs) mechanisms such as plant breeders’ rights. 


IPRs exist for a reason. If there are no property rights, there is no protection. If there is no protection, there is no return on investment. If there is no return on investment, there is no innovation, in both the public and private sectors. If that happens, we all lose. 


Don’t let some of the headlines fool you. The Bowman vs. Monsanto case is not about farm-saved seed. 


There is no dispute among the parties about the facts in this case. Patented soybeans are grown on more than 90 percent of the 275,000 soybean farms in the U.S. 


When Bowman bought the commodity seed, he knew exactly what he was buying. By planting those seeds, Bowman was using copies of the company’s technology for personal gain, just as if he had copied music or software and sold it for a profit. He didn’t have that right and he knew it. 


Reports coming out of the hearing suggest that the Supreme Court is leaning in favour of Monsanto. The alternative would be unthinkable. 


The implications would be huge not only for modern agriculture but also for self-replicating technologies in a wide variety of industries that rely on IPRs to protect their investments, such as software, vaccines and cell lines.


Without investments made by agricultural companies and the public sector, we wouldn’t have our high yielding varieties and the promise of new ones in the future. Without access to innovative crop varieties, we would be hard-pressed to meet the challenges of a growing world population, shrinking arable land base, environmental issues, disease, pests and drought. 


Cami Ryan is a research associate at the College of Agriculture and BioResources at the University of Saskatchewan.

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