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SCOTUS decision on seed use may affect farming practices

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The lawsuit rising from Knox County and landing before the U.S. Supreme Court echoes the Biblical story of David versus Goliath with a 74-year-old soybean farmer pitted against a multinational corporation. Adding to the drama are the attorneys who say not only could this ruling have profound implications, but that this is the wrong case for the court to use to decide the key issues at stake.

Arguments have not been scheduled in Vernon Hugh Bowman v. Monsanto Company and Monsanto Technology LLC, 11-769, but the case is being closely watched by the legal community. At issue is whether the doctrine of patent exhaustion applies to patented seeds after the authorized sale and should an exemption to the doctrine be made for self-replicating technologies.

Soybean-field-1-15col.jpgIndiana is among the top five soybean producing states in the U.S. A total of 238 million bushels were harvested in 2011. The crop is primarily used to make animal feed and vegetable oil.(Photo submitted)

Vernon Bowman purchased Roundup Ready soybean seeds from a licensed seller and planted them for his first crop of the season. For a second crop planted later in the season, Bowman used seeds he bought from the grain elevator along with some he had saved from the second crop the prior year.

Monsanto claims the second crop violates the licensing agreement Bowman signed when he purchased seeds for the first crop, prohibiting him from saving the seeds. Also, his actions violated two of its patents because the saved seeds contained the same genetically engineered trait as the first-generation seeds.

Mark Janis, director of the Center for Intellectual Property Research at the Indiana University Maurer School of Law, explained the Bowman case by using a copyrighted book as an example.

Buying then reselling a book does not violate its copyright but making five copies and selling those does, he said. In the Bowman case, the patent owner, Monsanto, allowed for the authorized sale of the seeds, limiting the farmers to use them in planting one crop and selling any progeny to the grain elevator. The Knox County farmer saved the seeds, and that raises the question if he infringed on the patent.

“Is saving seeds like copying a book?” Janis asked. “Is that making a new patented item? I think it is. I think it is inappropriate to say the rights have been exhausted.”

Paige Tomaselli, staff attorney at the Center for Food Safety, disagreed. She countered saving seeds is a traditional farming practice. Also, the seeds Bowman saved were legally purchased at a grain elevator and not labeled as patent protected.

Certiorari granted

Soybeans are one of the backbones of Indiana’s agricultural output with 238 million bushels harvested in 2011, and Monsanto’s Roundup Ready seeds are extremely popular. The seeds have been genetically engineered to resist glyphosate-based herbicide, enabling farmers to spray for weeds and not worry about harming the beans.

Even so, some farmers hold a negative view of the company because of its aggressive tactics in enforcing its patents. In a 2010 report, the Center for Food Safety estimated that as of Jan. 13, 2010, Monsanto had filed 136 lawsuits against farmers for alleged violations of the licensing agreements and patents.

Monsanto sued Bowman in October 2007, alleging the farmer infringed on two of its patents. The U.S. District Court for the Southern District of Indiana granted a summary judgment in favor of Monsanto and awarded the company $84,456.20.

Bowman appealed, and the Federal Circuit Court of Appeals affirmed the lower court’s ruling. On Oct. 5, the Supreme Court granted Bowman’s petition to review the ruling.

In a statement, Monsanto pointed out the Federal Circuit affirmed the District Court’s ruling and, after examining the case, the solicitor general concluded that a certiorari review was not warranted.

“While the Supreme Court has nonetheless elected to review the case, we remain confident in our legal position, and will ask the Supreme Court to affirm the Federal Circuit’s decision,” Monsanto stated. “The doctrine of patent exhaustion for self-replicating technologies, in this case seeds, is of significance to the entire agricultural biotechnology industry.”

Bowman’s attorneys did not return a phone call seeking comment.

sanders Sanders

Todd Janzen, partner at Plews Shadley Racher & Braun LLP, echoed the question voiced by many in the legal community as to why the high court agreed to hear this case.

“I’m somewhat surprised,” he said. “They don’t typically undertake a lot of agriculture-focused cases. This is going to be fun to watch.”

In his petition for writ of certiorari, Bowman argued under the Supreme Court’s ruling in Quanta Computer, Inc. v. LG Electronics, Inc. 553 U.S. 617 (2008), that the patents in his cases were exhausted when the seeds were sold to the grain elevator.

Janis theorized that the high court watched what the Federal Circuit has been doing in the wake of the Quanta decision and took the case to make sure the lower court is following the Supreme Court’s decisions.

“I fear that in its zeal to uphold the ruling that it made in Quanta, the court may feel it needed to grant the cert in a patent exhaustion case like this one,” he said.

Both Janis and Jay Sanders, partner at Faegre Baker Daniels LLP, said the decision to add a seed saving exemption to the patent statute is one Congress should make, not the courts. That exemption is already written into the Plant Variety Protection Act, and including it in the patent law could upset the balance between the two provisions.

Tomaselli took a pragmatic view.

“The truth of the matter is this case is going forward,” she said, “and it does present a unique issue in regards to seeds and patent law.”

Implications

If Bowman prevails in the U.S. Supreme Court, that could have a major impact on the doctrine of patent exhaustion.

In fact, Sanders said he could not image Bowman winning. Such a ruling could remove the incentive for companies to make the investment required to develop new products.

A Bowman victory would, in effect, mean a farmer could buy one seed and then use it forever without infringing on the patent, Sanders said.

Conversely, Tomaselli sees a significant benefit for farmers if the justices find for Bowman. “Farmers could regain their traditional rights to save seeds” which would help temper increases in seed prices.

If farmers are prohibited from saving seeds, the seed industry would be free to charge enormous prices for their products, she said.

A finding for Monsanto, Tomaselli continued, would “seem to perpetuate a lot of problems with patenting genetically engineered seeds.” In addition, she said, it would perpetuate the atmosphere of investigations and harassment of farmers that Monsanto engages in to protect its patent rights.

Limiting the ruling to the facts of the case would bring a Monsanto victory, Sanders said. As to the broader implications, such a ruling would affirm that genes are patentable subject matter and every generation of a crop is protected by that patent if the seeds have the patented gene in it.

Janzen pointed out predicting what the Supreme Court will do is difficult and, in this matter, it could remand the case back to the lower court for further proceedings. However, if Monsanto prevails, Janzen offered a view that echoed Sanders but acknowledged Tomaselli’s concerns about the company’s aggressive tactics.

“If the court finds for Monsanto,” he said, “then I think that would show they have a very strong patented technology that farmers should be weary of trying to infringe upon.”•
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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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