When is Patent Law Like Environmental Law?

Photo credit: David Gould / Getty Images

Photo credit: David Gould / Getty Images

Perhaps the most hated corporation in existence, Monsanto is a huge organization, best known for creating, selling, and, most importantly, patenting genetically engineered crops (GE crops) that are resistant to Monsanto’s brand of herbicide, Round-up. Commonly known as “Round-Up Ready” crops, Monsanto’s seeds include corn, alfalfa, and soybeans and are so widely used that pretty much everything we eat contains at least some GMO (Genetically Modified Organisms).

GE crops have several environmental implications. First, having crops that are resistant to toxic herbicides like Round-Up allow farmers to use more of them on their crops. This means that there’s more pesticides being swept up in stormwater runoff and end up in the water supply, causing havoc.

Second, because seeds are passed on very easily by pollinating animals, so-called “super weeds” that are also resistant to herbicides are beginning to pop up unintentionally far away from their point of origin. Stronger and more potent herbicides are needed in greater amounts in order to get rid of these, compounding the runoff problem and potentially removing a tool in the fight against invasive species. The same is happening with Monsanto’s line of pesticide resistant crops, where the very bugs the pesticide is targeting are becoming resistant themselves (isn’t evolution wonderful?).

While these are very serious problems, the reason Monsanto is so reviled is more due to the way it treats farmers. Because the genes themselves are patented, Monsanto is allowed to prosecute patent infringement rigorously – and it does so to great effect. Monsanto has also been accused of harassing and intimidating farmers into settling rather than pursuing their cases, which usually works because of the incredible resource disparity between local farmers and a huge conglomerate like Monsanto. Of the cases that have made it to court (11 out of 145 according to Monsanto’s website) every single one has been decided in Monsanto’s favor.

Now, however, one of these cases has made it into the Supreme Court. SCOTUS recently heard arguments in Bowman v. Monsanto, originally decided by the Federal Circuit Court of Appeals. Bowman found a way to save GE seeds without buying them directly from Monsanto and ostensibly without violating Monsanto’s licensing, which prohibits farmers from saving or planting the seeds that were grown from Monsanto’s seeds.

Some of the GE seeds were sold (legally) into the commodity seed market and mixed with other seeds. Bowman bought seeds from the commodity market, planted them, then sprayed them with Round-Up to find which ones survived. Then, free of the Monsanto usual licensing agreement forbidding seed saving, Bowman saved the Round-Up Ready seeds from the commodity crop for planting in the next season.

Monsanto sued Bowman, claiming that their patent had been infringed and the Federal Circuit agreed. This decision may be directly contradictory to previous SCOTUS precedent saying that patent holders cannot require the entire supply chain to license their patent.

However, the questions asked during oral argument were not very sympathetic to Bowman. The justices equated planting the resulting seeds with making a copy of the original, patented product rather than simply using the original product in the manner for which it was intended.

But the fact that we have allowed Round-Up Ready crops to become so ubiquitous that these questions need to be answered has implications for more than just patent law. Even setting aside the unique environmental problems that Round-Up Ready crops pose, how sustainable is the practice of patenting the genes in a seed?

Many people have a very visceral reaction to the idea that farmers can no longer plant seeds that came from crops that they grew, or that seed cleaners could be sued for cleaning patented seeds. Food is one of the fundamentals for our survival; it’s natural to be concerned when the government hands a single company a genetic monopoly over its production.

We’ve seen a glimpse of the end-game of such a system in India, where farmers are committing suicide by the thousands after experimental crops fail and they are left with nothing but the monumental debt required to buy them.

It seems as if the Supreme Court won’t be where this system changes, but there’s always the hope that Congress will act. Hopefully that happens before GE seeds go from close to 90% of our corn and soybeans to 100%.

Kelci Block is in her final year at William and Mary Law School and is co-president of William and Mary’s Environmental Law Society. She has interned at the Southern Environmental Law Center, Chesapeake Bay Foundation, and the Virginia Outdoors Foundation. She has previously been published in the Environmental Law Reporter.