Two weeks ago the US Supreme Court heard oral arguments in the case of Vernon Bowman vs Monsanto Company, a dispute over how long Monsanto’s patents last for and whether farmers should be able to save genetically modified seeds and replant them. Here’s a nice synopsis of the dispute, from the gang over at Mother Jones:
Photo by Jessica Reeder
“Here’s what happened: Bowman bought seeds from a grain elevator that sold soybeans for animal feed, industrial use, or other nonplanting purposes. The elevator contained a lot of ‘second generation’ Roundup Ready seeds—the spawn of original seeds that other farmers had bought and harvested from Monsanto. That’s not surprising, since “’Roundup Ready soybeans are] probably the most rapidly adopted technological advance in history,’ said Seth Waxman, who is representing Monsanto. ‘The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States.’
Bowman then planted the soybeans—and that’s the part that Monsanto objects to. Farmers who plant Monsanto soybeans have to sign an agreement saying they will not save the ‘second-generation’ seeds and use them for the next harvest. Bowman didn’t replant his own Monsanto seeds, but he did plant seeds that contained somebody else’s second-generation Monsanto seeds. According to Monsanto, buying that grain and planting it to make more soybeans (as opposed to buying the grain to use for food or another purpose) is a patent violation, too.”
As the justices review the merits of each side’s arguments, they will also hear from a range of interest groups who have filed amicus (or friend-of-the court) briefs in support of either the soy farmer or the seed company. Nearly two dozen organizations or individuals have filed amicus briefs, from the Public Patent Foundation (backing Mr. Bowman) to CropLife America (aka the Crop Protection Association, an industry group in support of Monsanto.) One of the amicus briefs in particular caught my attention — an argument by the University of California, University of Missouri, University of Kansas, Duke University, and a range of other public and private universities offering support for Monsanto’s position.
I can’t say that I was shocked, but I was surprised to learn of the universities’ brief, which was submitted by the Wisconsin Alumni Research Foundation. Why, exactly, would these institutions of research and higher learning be in favor of Monsanto’s strict definition of intellectual property?
Short answer: money.
“In 2011, the Association of University Technology Managers found, universities received $1.8 billion in licensing revenue,” says Jacob Rooksby, an assistant professor of law at Pittsburgh’s Duquesne University who is an expert in patent law and higher education. “Patenting can be hit or miss, but when you get a good one, it can be a home run. Those universities [that signed onto the amicus brief] in particular are very active in patenting and licensing, so the outcome [of the case] is of interest to them.”
“Interested” might be an understatement. Take the University of California, one of the nation’s (if not the world’s) pre-eminent public research institutions. According to a 2007 AP story, the University of California system makes about $100 million annually from what are called “technology transfers” — basically, selling its researchers’ findings to companies that hope to commercialize them. A loosening of patent protections (which essentially is what farmer Bowman is arguing for) could cost the university big money.
When asked why the University of California signed onto the pro-Monsanto amicus brief, UC officials were tight-lipped. I was emailed this two-sentence statement explaining UC’s position: “The University of California agrees with the Association of American Universities about the importance of this case. There are implications for licensing of patents arising from agricultural research as well as for other areas of research that potentially involve self-replicating technologies, such as cell cultures, nanomedical robots, organic computers, and more.”
George Kimbrell, an attorney with the Center for Food Safety, a group opposed to GM technology, agrees that the case has “implications for licensing of patents” — implications that have already served to reduce academic freedom.
“This is a case of money talks and bullshit walks,” Kimbrell told me. “That is what this is about. All of those amicus briefs are essentially saying to the Supreme Court that the economic sky will fall if you don’t allow this patent stranglehold to continue. They [the universities] are financially invested in the status quo.”
Kimbrell’s own amicus brief, submitted by the Center for Food Safety, argues that Monsanto’s patent-protected restrictions on research of its seeds goes against the public interest. According to the brief, Monsanto “prohibits anyone buying patented seeds from conducting research on their seed, or transferring seed to someone else for research. … Scientists cannot buy seeds for their studies, or obtain them from farmers; instead they must seek permission from [Monsanto], or risk a lawsuit.”
Such restrictions, the Center for Food Safety warns, make it difficult for independent researchers to assess the safety of GMO crops — a key point of contention in the broader GMO debate. The group’s amicus brief goes on to say: “Critical scientific inquiries are being aborted, and those that are undertaken are manipulated and controlled. This perverse result conflicts with the ‘primary purpose of our patent laws [which] is not the creation of private fortunes for the owners of patents, but [rather] ‘to promote the progress of science and useful arts.’”
Although he’s largely supportive of how universities earn money from patent licensing and technology transfers, law professor Rooksby agrees that Monsanto’s research restrictions are worrisome: “It’s not that the patent laws are necessarily bad. I get that you need a monopoly to incentivize research. But when it comes to restrictions on what faculty can do at public universities, then I am concerned.”
It seems all-but-certain that Monsanto will win the case. Under current patent law, the farmer’s case is shaky and the justices’ questioning from the bench suggested that the court is leaning toward the seed company’s arguments. “Why in the world,” Chief Justice John G. Roberts Jr. asked during oral arguments, “would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”
But later this term the Supreme Court will hear arguments in a case that’s less certain in its outcome, and which will also have major implications for gene patenting and universities’ technology transfer deals. The case, Association for Molecular Pathology vs. Myriad Genetics, will test the validity of whether a company can patent a gene that is intrinsic to all humans. Here’s the background, as Rooksby explains it:
“Myriad has a patent on an isolated gene to screen for pre-disposabiblity to certain cancers. The patents are owned by University of Utah, and the university licensed that patent exclusively to Myriad Genetics. So if you wan to see if you have this gene, you have to pay $3,00o to Myriad Genetics. If they didn’t have that exclusive license, you could go to any major research hospital and get the test done.”
The Myriad Genetics case is also racking up a pile of amicus briefs — mostly from hospitals and public health organizations that say the monopoly patent is a threat to people’s health. As Kaiser Permanente argues in its brief: “Kaiser Permanente’s experience with the Myriad patents teaches that … granting patent rights in isolated human genes inhibits both clinical treatment and scientific research and understanding.”
You can be sure that by the time the Supreme Court hears oral arguments in that case, a good number companies and universities will submit briefs in support of the Myriad Genetics position. And the reason, once again, will have a lot to do with profit.
“The outcome of that case will affect all universities that have biotech patents, gene patents, which is most of them,” Rooksby told me. “That’s where the money is to be made, in gene technology.”