Professionalism/Monsanto's Seed Patents

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Monsanto company logo

Monsanto is an biotechnology corporation that developed agricultural biologicals to benefit crop yield.[1] In August 2018, Monsanto was acquired by Bayer's crop science division.[2] Since the 1980s, Monsanto has been the world leader in genetically-modified seeds and won 674 biotechnology patents, more than any other company, according to the U.S. Department of Agriculture.[3] During Monsanto's time, its controversial seed patenting burdened farmers with strict contracts and strong monopolies. Control over seed can be considered as control over the food chain; a corporation with patent rights can control farmers who rely on seeds as a source of life. These genetically-modified seeds look identical to their non-GMO counterparts. However, Monsanto may visit farmers and conduct laboratory analyses to find out. Monsanto's controversial patenting of living organisms alienates farmers and those concerned with anti-GMO crops. Monsanto is very stringent with these rights, to the point of encroaching onto growers' farms. Monsanto states its primary reason for enforcing these patents this way is "to ensure a level playing field for the vast majority of honest farmers who abide by their agreements, and to discourage using technology illegally to gain an unfair advantage."[4] Monsanto may act simply to protect its technology from being abused.

Background[edit]

Monsanto's glyphosate-based Roundup herbicide was commercialized in 1976.[5] Roundup would not take off until the release of Monsanto's Roundup Ready crops in 1996. These patented crops had in-seed herbicide resistance genes to Roundup, allowing growers to indiscriminately spray and protect their crops with Roundup without worrying about killing them. This combination of Roundup and Roundup Ready eliminates the need for labor-intensive weed control and plowing. A previous 1980 US Supreme Court case had extended patent law to cover "a live human-made microorganism."[6] Monsanto took this precedence and applied it to their genetically-modified seeds, much to public outcry over these corporate bioengineered super-seeds taking control of the global food supply. These patents legally prohibit unauthorized duplication for 20 years. However, Monsanto continues to release new patents, preventing people from accessing expired ones.

Growers must sign into a Monsanto Technology/Stewardship Agreement to purchase and plant these Roundup Ready seeds.[7] Among the rules set in the technology use guide (TUG), Monsanto reserves the right to visit and monitor their customers' farms. Farmers must also agree to not save and reuse these seeds as well as not sell them to other farmers. They must buy new seed each year. The TUG restricts farmers' rights and returns consequences for misuse of Monsanto's crops. Interviews and court documents have revealed that Monsanto relies on a shadowy army of private investigators sometimes called the "seed police" to infiltrate farmers.[8] These agents have been known to secretly record farmers and even pressure them to sign away access to their private records. Monsanto declines to comment on these methods specifically, other than say it is protecting its patents. These shady practices sow public distrust against Monsanto.

Monsanto cannot just modify its seeds to be used only once. Terminator seeds refer to genetically-modified seeds that have their reproductive abilities turned off, making them sterile.[9] This technology was never commercialized due to anti-GMO concerns. With a 2006 worldwide moratorium on terminator seeds, Monsanto and other companies pledged not to use these seeds but since then have researched other means to track seed piracy.

In the two following cases, farmers have tried to bypass their contracts with Monsanto and illegally obtain seeds. Both of them may be considered unprofessional in how they acted against Monsanto. Neither of these farmers could defend their cases from Monsanto's legal team.

Percy Schmeiser[edit]

Percy Schmeiser (2008)

Percy Schmeiser is a Canadian canola farmer who became famous for his legal battles with Monsanto that eventually reached the Canadian Supreme Court. Despite repeated failures in court, Schmeiser remains somewhat of a "folk hero" among farmers and groups opposed to Monsanto's transgenic crops.

Monsanto v. Schmeiser[edit]

In 1997, Schmeiser sprayed Roundup on three acres of his canola field, killing a significant amount of the canola. Schmeiser likely would not have sprayed all his crops with Roundup unless he knew his surviving crops were Roundup Ready. Furthermore, farmers like Schmeiser understand the only plants that survive Monsanto's Roundup are the "Roundup Ready" plants also sold by Monsanto. He harvested the surviving crops, segregated the seed, and in the following year used them to seed his entire 1,030 acre farm.[10]


In 1998, a Monsanto test of Schmeiser's land revealed that 95 to 98 percent of his canola crop was Roundup Ready.[10] Schmeiser's claimed that Roundup Ready seeds had been carried by the wind onto his land and germinated. However, the courts ruled "none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extend of Roundup Ready canola of a commercial quality". Schmeiser appealed this ruling for the following decade but lost each case at each judicial level:

  • The 2001 federal court case ruled that Schmeiser violated the Monsanto seed patent. The court cites that Schmeiser "knew or ought to have known" that the process he was using to cultivate the Roundup resistant seeds were potentially infringing.[11]
  • Schmeiser was again defeated in his 2002 appeal, where the Canadian Federal Court of Appeal unanimously dismissed Schmeiser's 17 grounds for appeal.[12]
  • Schmeiser's final defeat occurred at the highest level in 2004, when his appeal to the Canadian Supreme Court was struck down. [13]

Despite his failures, Schmeiser achieved a small victory at the Supreme Court when the court ruled he need not pay Monsanto his profits from his patent-infringing 1998 crop. During his future lecture tours, Schmeiser would continue to claim that he won the case in the Supreme Court and maintained he did not plant the Roundup Ready seeds.[14]

Schmeiser v. Monsanto[edit]

Emboldened by the continued support he received, Schmeiser began preparing a separate lawsuit against Monsanto for $10 million on the grounds of "libel, trespass, and contamination of his fields with Roundup Ready Canola."[15] However, Schmeiser has yet to proceed with the lawsuit. [16]

Schmeiser's wife Louise also filed a small suit against Monsanto for a mere $140, claiming contamination of her small personal garden with Monsanto's Roundup Ready canola. [17] This case, like all of Percy Schmeiser's, was struck down.

Schmeiser's last engagement with Monsanto was his 2005 request for Monsanto to remove the Roundup Ready crops he discovered in his field. This exchange ultimately ended with Monsanto settling out of court, paying the $660 removal fee without any stipulation.[18]

Aftermath[edit]

Despite his legal failures, Schmeiser remains popular to this day. In 2009, his battles were documented in a movie titled "David versus Monsanto", which, like the title, suggests, depicts Schmeiser as the biblical David figure vs the Goliath of Monsanto. [19] In 2007, both Percy and Loiuse Schmeiser were winners of the Right Livelihood Award "for their courage in defending biodiversity and farmers rights, and challenging the environmental and moral perversity of current interpretations of patent laws."[20]

Monsanto remains unpopular in the public eye, despite the support of legal rulings.

Vernon Bowman[edit]

Vernon Bowman, a farmer from Indiana, also became involved in a lawsuit from Monsanto. In 1999, Bowman purchased seeds from a local grain elevator. The grain elevator had designated these seeds to be used for purposes other than replanting, such as animal feed. Instead, Bowman tested the seeds, and discovered that many were immune to Roundup. [21] Bowman replanted the purchased seeds, and was subsequently sued by Monsanto for patent infringement.

Monsanto v. Bowman[edit]

Monsanto held that Bowman had infringed its patents because he had not been licensed by Monsanto to purchase and replant seeds from the elevator. Monsanto argued that sale of seeds are not "authorized" when they are replanted. Bowman, however, argued that Monsanto's license only held jurisdiction over the original farmer, who had produced and sold second generation seeds to the elevator. [22] Bowman stated that he had not infringed on the patent due to the presence of patent exhaustion after the first sale of seed. Patent exhaustion limits the control that a patent owner has over their product after a sale, especially concerning self-replicating technology. [23] Monsanto also contended that even if the sale to grain elevators resulted in exhaustion, infringement still occurred when the seed was replanted. Previous lawsuits had allowed Monsanto to successfully uphold that patent protection "is independently applicable to each generation of any crop that contains the patented trait." [24]

Rulings[edit]

In 2009, a federal judge in Indiana ruled in favor of Monsanto, ordering Bowman to pay damages totaling $84,456. [25] Upon appeal, the Federal Circuit upheld the low court's ruling. Finally, Bowman went to the Supreme Court, contending that the Supreme Court had set precedent for his case with United States v. Univis Lens Co., which had ruled in favor of patent exhaustion amid post-sale restrictions [26] In 2013, the Court delivered a unanimous opinion, affirming the judgment of the Federal Circuit. It was held that while an "authorized sale of a patented item terminates all patent rights to that item," that exhaustion does "not permit a farmer to reproduce patented seeds... without the patent holder's permission." [27] Since Bowman had planted and harvested a saved seed, it constituted an unauthorized "making" of the patented product.

Conclusion[edit]

If Schmeiser and Bowman broke the law, then there are two valid perspectives:

1. Schmeiser and Bowman were professionals because they broke unjust laws.

2. Schmeiser and Bowman are not professionals because they broke the law and hurt their fellow professionals' credibility, even though they should have accepted the rules of their profession.

If they did obey the law, then there are two valid perspectives for Monsanto:

1. Monsanto is professional because it used rigorous scientific methods to fairly reach a conclusion, even if it was false.

2. Monsanto is not professional because it should not have patented seeds that have a high chance of falsely creating patent disputes.


Important questions to consider are:

  1. Should Schmeiser have lied that he won the Supreme Court case in his lecture tours or was he justified because he technically did not have to pay for his 1998 patent infringement?
  2. If Monsanto's seed police exists, is it a massive breach of privacy or a necessary precaution to investigate seed piracy and thus protect its intellectual property?

References[edit]

  1. "AGricultural Biologicals". Monsanto. 2019. https://monsanto.com/products/agricultural-biological-products/. Retrieved 2019-04-24. 
  2. Monsanto (2018-08-16). "Bayer: Conditions for beginning Monsanto integration fulfilled<!lang>" (in {$lang}</!lang>). Press release. https://monsanto.com/news-releases/bayer-conditions-beginning-monsanto-integration-fulfilled/. Retrieved 2019-04-24. 
  3. Barlett, Donald; Steele, James (2008-05). "Monsanto's Harvest of Fear". Hive (Vanity Fair). https://www.vanityfair.com/news/2008/05/monsanto200805. Retrieved 2019-05-05. 
  4. "Seed Patent Protection". Products. Monsanto. https://monsanto.com/products/product-stewardship/seed-patent/. Retrieved 2019-05-06. 
  5. "Company History". Monsanto. Archived from the original on 2008-04-23. https://web.archive.org/web/20080423174556/http://www.monsanto.com/who_we_are/history.asp. Retrieved 2019-05-05. 
  6. Barlett, Donald; Steele, James (2008-05). "Monsanto's Harvest of Fear". Hive (Vanity Fair). https://www.vanityfair.com/news/2008/05/monsanto200805. Retrieved 2019-05-05. 
  7. "Technology Use Guides". Products. Monsanto. 2019. https://monsanto.com/products/product-stewardship/technology-use-guides/. Retrieved 2019-05-05. 
  8. Barlett, Donald; Steele, James (2008-05). "Monsanto's Harvest of Fear". Hive (Vanity Fair). https://www.vanityfair.com/news/2008/05/monsanto200805. Retrieved 2019-05-05. 
  9. "What's the controversy over 'terminator' seeds?". GMO FAQ. Genetic Literacy Project. https://gmo.geneticliteracyproject.org/FAQ/whats-controversy-gmos-terminator-seeds/. Retrieved 2019-05-06. 
  10. a b https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2147/index.do
  11. http://decisions.fct-cf.gc.ca/en/2001/2001fct256/2001fct256.html.
  12. http://http//decisions.fca-caf.gc.ca/en/2002/2002fca309/2002fca309.html
  13. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2147/index.do?r=AAAAAQAJc2NobWVpc2VyAAAAAAE
  14. https://monsanto.com/company/media/statements/percy-schmeiser/
  15. https://www.producer.com/1999/08/legal-battle-over-patented-canola-set-for-next-june/
  16. https://books.google.com/books?id=zj9tfUPKgeMC&dq
  17. https://www.producer.com/2005/06/schmeisers-lose-again-to-monsanto-in-gm-case/
  18. https://www.commondreams.org/news/2008/03/20/grain-farmer-claims-moral-victory-seed-battle-against-monsanto
  19. https://www.imdb.com/title/tt1522241/
  20. https://web.archive.org/web/20071010212400/http://www.rightlivelihood.org/schmeiser.html
  21. https://www.nytimes.com/2013/02/20/business/justices-signal-a-monsanto-edge-in-patent-case.html
  22. https://www.patentdocs.org/2011/09/monsanto-co-v-bowman-fed-cir-2011.html
  23. https://scholarship.law.upenn.edu/faculty_scholarship/1790/
  24. https://www.patentdocs.org/2011/09/monsanto-co-v-bowman-fed-cir-2011.html
  25. https://scholar.google.com/scholar_case?case=3157371550958075680&hl=en&as_sdt=2&as_vis=1&oi=scholarr
  26. https://supreme.justia.com/cases/federal/us/316/241/
  27. https://www.nytimes.com/2013/05/14/business/monsanto-victorious-in-genetic-seed-case.html