Following the Law
Monsanto sues over patented seed
Lisa M. Brownlee
Centre Daily Times, August 24 2008
David v. Monsanto is the latest of many lawsuits against farmers (in this case, Lauren David) by Monsanto.
Monsanto is the owner of the patented herbicide Roundup and the also-patented Roundup Ready herbicide-resistant seed.
At issue in this case is David's right to plant Roundup Ready soybean seeds that he produced
from plants grown from Roundup Ready seeds he purchased from Monsanto.
David lost the case, both at trial and at the federal circuit, and was fined $786,989. Last week, David appealed to the Supreme Court.
Presently, farmers must buy Monsanto seed annually to grow a Roundup Ready crop.
Some experts believed that a recent Supreme Court ruling on "patent exhaustion" indicated that the Supreme Court would grant David's appeal (if patent exhaustion was the issue presented on appeal).
"Patent exhaustion" means that the "first sale" of the patent seed "exhausts" the patent owner's rights.
Under this doctrine, Monsanto could not prevent use of its seed after the first sale.
David did not request the Supreme Court to consider the exhaustion doctrine because he did not believe the earlier ruling to be applicable because Monsanto's license agreement restricts use of the seed - distinguishing his client's case from the case at hand.
Some patent experts believe the Supreme Court will therefore deny the appeal. David's lawyer strenuously disagrees.
The result? Monsanto's right to prevent farmers from planting herbicide resistant seeds they grow from Monsanto-patented seeds will remain in place until another suitable case makes its way through the court system. This could take decades.
David's lawyer informs me that $7.25 of the $21 cost of one "unit" of Roundup Ready seed is attributable to the Monsanto "technology fee."
Monsanto did not respond to my calls for current price structure.
According to the Center for Food Safety, Monsanto has collected more than $21 million from farmers for seed piracy, with one farmer paying more than $3 million.
Several local farmers use Monsanto-patented seed.
Todd Irvin, a Ferguson Township soybean producer, says he plants roughly 370 acres of Monsanto’s Roundup Ready soybean.
Penn State also grows patent-protected seed from a variety of companies, including Monsanto, Pioneer, and Syngenta, according to Dennis Calvin, Penn State professor and associate director of cooperative extension.
Both said that first-generation Monsanto seed has beneficial traits other than herbicide resistance that provide incentives for farmers to not produce their own seed.
Monsanto's seeds and genomics made up 70 percent of the company's 2007 gross profits.
If the Supreme Court denies David's appeal as expected, Monsanto's profits will remain unchallenged.
. She’s an attorney licensed to practice law in the state of Washington and in Pennsylvania as permitted under 204 Pa. Code Rule 5.5 (federal patent, trademark, copyright and international treaty law). She is a professional associate of Penn State Continuing Professional Education: intellectual property and open source software law and has authored several books on intellectual property law.