Subj:         seed patents go to Supreme Court
Date:   01-07-17 18:39:10 EDT
From:   [log in to unmask] (Laurel Hopwood)
Sender: [log in to unmask] (Biotech Forum)
Reply-to:   [log in to unmask] (Biotech Forum)
To: [log in to unmask]

This was posted with approval from the sender.
laurel

copyright warning:
THE FOLLOWING CANNOT BE REPRINTED OR DISTRIBUTED IN ANY FORM WITHOUT CONSENT
OF ALAN GUEBERT <[log in to unmask]> OR ag comm.

Farm and Food File for the week beginning Sunday, July 15, 2001
Seed patents, lawsuits, bundling go to Supreme Court
Alan Guebert

 <In a landmark antitrust case, the U.S. government proved Microsoft's
"bundling" of its computer software applications, such as Internet Explorer,
to its "platform," the Windows operating system, equaled an air-tight
monopoly that stifled competition.

 <To Allan Las, vice president of marketing for Farm$aver.com, a generic
agri-chemical maker and on-line marketer, Monsanto Co. may be agriculture's
Microsoft. In Monsanto's case, explains Las, the firm's powerhouse Roundup
chemical is just one of the "applications" bundled to Monsanto's "operating
system," its patented bioengineered seeds.

 <"I've heard from dozens of growers," offers Las, "and viewed several
complaints by Monsanto competitors who believe much of what Monsanto is
doing--eliminating the saving of seed, basing its seed warranty on the use
of brandname Roundup, effectively restraining the sale and distribution of
generic Roundup--is little different than what Microsoft stands accused of."
And farmers, Las estimates, are paying hundreds of millions of dollars extra
for seed and crop chemicals every year because of it.

 <Despite the similarities with Microsoft, the government isn't suing
Monsanto. In fact, it's working hand-in-glove with global biotech companies
like Monsanto to ensure their newly minted market power, seed patents, and
the patents' subsequent effects--costly tech and royalty fees, bans on
saving seed, chemical use tied to seed purchases--is strengthened and
preserved.

 <In a crucial case to be heard by the U.S. Supreme Court, the Bush
Administration's Solicitor General, Theodore Olson, filed an amicus, or
friend of the court, brief supporting Pioneer Hi-Bred's contention that
"sexually produced plants are patentable subject matter." Joining Olson in
the amicus is, strikingly, the U.S. Dept. of Agriculture. Other biotech
masters of the universe such as Monsanto, Cargill, BASF, Delta and Pine Land
Co. and the Biotech Industry Organization filed briefs favoring Pioneer,
also.

 <The facts of the case are undisputed: Pioneer sued J.E.M. Ag Supply, an
Iowa farm supply company, for patent infringement when J.E.M. resold 1,300
bags of patented Pioneer seed. J.E.M. filed a counterclaim arguing that
Pioneer's patent was invalid under the 1970 Plant Variety Protection Act
(PVPA) which notes plants "not new, distinctive, uniform and stable" cannot
be patented.

 <Pioneer, however, says its patents are protected under the Patent Act of
1790, a much older, broader patent law whose central foundation is
"utility." The 1790 law doesn't even mention plants. Both the district and
appellate courts agreed with Pioneer.

 <J.E.M. appealed to the Supreme Court, explains J.E.M. attorney Bruce
Johnson of Des Moines, "because we argue the 1970 Plant Variety Protection
Act passed by Congress specifically addresses patent-like plant protection.
It's the governing law because it dives into plant patenting, not the
broader Patent Act which never mentions plants."

 <The PVPA, however, permits seed saving and public research of seed. Thus
the biotech companies' desire to be covered under the broader utility law:
it freezes out competition, prevents seed-saving and virtually ensures
enormous future profits to the patent holders.

 <Also, if Pioneer's utility concept is upheld, worry other attorneys locked
in similar seed patent battles, livestock genetics could be the next farm
item put under lock, key and royalty by biotech firms.

 <It's all come to this, explains Las of Farm$aver.com, because of the broad
patents granted seed companies by the U.S. Patent Office in the late 1980s.
Chemical companies like Monsanto, says Las, better understood the riches
these broadly-based utility patents presented; better understood them than
the seed companies themselves. That's the key reason why every major seed
firm is now owned by former chemical companies. (They now call themselves
"life science" companies.)

 <And it has been rich. Las "conservatively" estimates Monsanto will harvest
$1.67 billion in "technology royalties and premiums" from farmers this year
through sales of its patented cotton, corn and soybean technology.
 <Are biotech companies skirting the newer laws by relying on the much older
utility patent? J.E.M. believes so, and so do other attorneys who say the
very idea that farmers are required to sign technology agreements to
purchase the seeds indicates the biotech companies know their patents are
shaky. Very shaky.

 <Says one attorney: "If their patents are enforceable, the biotech
companies wouldn't need tech agreements."

 <The Supreme Court hears oral arguments Oct. 3 . A decision is anticipated
sometime in 2002.

(c) 2001 ag comm

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