Last week, the supreme court ruled that “a farmer who buys patented seeds may [not] reproduce them through planting and harvesting without the patent holder’s permission.”
The patented seeds in question are Roundup Ready soybeans, a strain engineered by Monsanto to be resistant to a broad-spectrum herbicide called glyphosate, also developed by Monsanto. At first, I thought this was a case about genetically modified crops–patents, GM, corporate litigation, big agra, and rivers of herbicide go together, right? And the gene for glyphosate resistance had been inserted into soybeans by infecting them with a DNA-altering bacterium. I’ve been learning a bit about the science of genetic modification, which should probably be called technology given how ubiquitous it is (Harvard scientists make GM mice whose neurons fluoresce in a 20-color brainbow.) So I got all excited to talk about the history of genetically-modified plants, and the maybe-genius maybe-disastrous uses scientists, in universities and multinationals, have in the pipeline.
But this is really a case about patenting seeds, cells, and plants, which has been going on at least since the Plant Patent Act of 1930. That law does what it says (which is rare among laws, cf No Child Left Behind) and explicitly allows for the patenting of plant varieties. Clarified in 1954 to include seeds, mutants, and hybrids, the law has been used to patent more than 20,000 distinct species of plant. Most recently, plant patent #23,600 was awarded to a British woman named Brenda Bowyer for (conventionally) breeding a variety of helichrysum she christened “Ember Glow,” after the way its red bulbs orange with age. The delicious and now popular Honeycrisp apple was the result of three decades of iterated crossing by hand-pollination and careful selection at the University of Minnesota; the plant was patented in 1998, and for the next 20 years, the U of M charged $1.30 per seedling. In 2008, the US patent expired, and now anyone can sell the seedlings/branchings royalty free. Apple breeding is a pretty well-functioning part of the plant-patent world, and is responsible for the disturbing turnover of apple varieties since I was a kid (those Piñata apples have been showing up a lot lately–patented in 2000).
It turns out, though, that none of the famous GM crop patents, including the Monsanto patent on glyphosate-resistant soybeans, are actually plant patents. No, those are just ordinary (utility) patents which happen to be on plants. This subtlety, plant patent vs patent on plants, is pretty typical legalese, and as as all my lawyer and would-be lawyer friends well know (congrats on finishing xL), the whole case can ride on such distinctions. If Monsanto’s patent had been a plant patent, the farmer would have been a clear victor and the case would never have made it out of district court.
So who is the farmer here, what did he do, and why is it, in the unanimous opinion of our supreme court, obviously illegal?