Thursday, June 6, 2013

Why patent law favors Monsanto.

It is rare that the United States Supreme Court takes a case that directly affects Midwestern corn and soybean farmers. That happened recently in Bowman v. Monsanto, where the Supreme Court held that Indiana soybean farmer, Vernon Bowman, infringed upon Monsanto’s Roundup Ready patent when he planted “commodity” soybeans he purchased from his local elevator that contained the Roundup Ready technology. Although many billed this case as David versus Goliath, in reality, this 9-0 decision suggests the law was pretty well settled in favor of Monsanto. There are good reasons why Monsanto won.

Patent law is very well developed in this country. Article One, Section 8 of the Constitution provides Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Using this power, Congress has passed laws that provide inventors with a limited monopoly to use and reproduce their unique creations. This monopoly includes the power to use our federal courts to keep others from using that technology without licensing and paying for it.

A patent’s monopoly is limited to 20 years. When the United States Patent & Trademark Office granted Monsanto a patent for the glyphosate resistant soybean technology, it was given the right to exclude others from reproducing the technology unless they obtain a license from Monsanto to do so. By planting commodity soybeans instead of buying directly from Monsanto (or its licensed sellers), Bowman was replicating the patent instead of purchasing it. Decriers of the Bowman decision should take heart—Monsanto’s Roundup Ready patent expires in 2014.

Although patents appear exclusionary, in reality, they are the opposite. In exchange for being granted the patent, the inventor must fully disclose the patent to the U.S. Patent Office. This gives competitors the opportunity to review the patented technology; create their own similar, but unique patents; and ramp up to create “generics” for the day that the patent expires. That’s why our drugstore shelves are stocked with generic acetaminophen, giving consumers a less expensive choice over the once-patented Tylenol. But in countries with no patent protection, innovators keep their inventions secretive. This hinders technological progress.

With this in mind, it’s easy to understand why the U.S. Supreme Court unanimously decided that Mr. Bowman had infringed upon Monsanto’s Roundup Ready patent when he planted “commodity” soybeans from his local elevator. The soybeans contained the patented technology, and by planting, harvesting, and replanting, Mr. Bowman was copying the patent without licensing it. Those who see this case as a loss for David and a victory for Goliath should remember one thing. It’s only because we live in a country where patents are protected that companies like Monsanto are willing to invest the millions of dollars it takes to bring new biotech inventions to market.

By Todd Janzen

This article previously appeared in Hoosier Ag Today.  

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