Saturday, September 20, 2014
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Biotech happy that Supreme Court protects patents in Bowman v. Monsanto

The Supreme Court sided with Monsanto rather than a small, Indiana farmer, who tried to avoid the high cost of Monsanto's seeds.

Biotech happy that Supreme Court protects patents in Bowman v. Monsanto

Indiana farmer Vaughn Hugh Bowman got shut out at the Supreme Court and some of the cheering from the stands was the biotech industry.

A soybean farmer from Indiana, Bowman took on a giant in the industrialized agriculture world, Monsanto, and lost badly. All nine justices ruled in favor of Monsanto. The case was Bowman v. Monsanto et al., and a link to the opinion is here.

The court will decide several cases this spring that involve patent law and drug companies. Still to come is a decision on human gene patenting and whether generic and brand-name companies violated antitrust laws in settling litigation about patent infringement.

Making seeds is country cousin to making drugs.

Monsanto sells patented seeds, but only with a written agreement that the farmer will use the seeds only once. Each year, he or she must buy new seeds. (The appeal of the seeds is that they are immune to the herbicide Roundup, which Monsanto also makes and kills weeds. The seeds are, thus, called RoundupReady.) Bowman argued that he should be able to use second-generation soybean seeds that came from soybean plants made from Monsanto's soybean seeds without paying extra.

But, Justice Elena Kagan wrote for the Court, "If Bowman was granted that exception, patents on seeds would retain little value."

Bowman also argued that this replication is, really, just what nature and seeds do on their own. Kagan would have none of it.

"We think that blame-the-bean defense tough to credit," she wrote.

This opinion made a lot of lawyers and executives in the pharmaceutical and biotech world quite happy. The Biotechnology Industry Organization (BIO) is a key trade organization for more than 1100 members, from big drug companies to two scientists with one microscope, to university research centers. When these groups spend big money to mix molecules, they want the patents to help them pay the bills if the product is worthwhile.

BIO filed an amicus brief in support of Monsanto. Besides the BIO lawyers, Philadelphia attorney Matthew Pearson joined colleagues from Akin, Gump, Strauss, Hauer & Feld, LLP, in writing the brief.

If Bowman was allowed to prevail, they wrote, and "perpetually make new copies of the invention, [it] would effectively eviscerate the government-conferred patent monopoly." A link to brief is here.

But people in the biotech-pharmaceutical industry can't get too carried away, Kagan cautioned.

"Our holding today is limited — addressing the situation before us, rather than everyone involving a self-replicating product," Kagan wrote. "We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose."

David Sell
About this blog
David Sell blogs about the region's pharmaceutical industry. Follow him on Facebook.

For Inquirer.com. Portions of this blog may also be found in the Inquirer's Sunday Health Section.

Reach David at dsell@phillynews.com.

David Sell
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