What’s at Stake in Bowman v. Monsanto

“If the Supreme Court [in Bowman v. Monsanto] decides to overrule the Federal Circuit’s decision in favor of Monsanto, it could seriously impact the ability of agricultural biotechnology companies to recoup their investment in developing traits for seeds that farmers can harvest and replant, such as soybeans. …

If…companies like Monsanto cannot use their patents to prevent replanting a second-generation seeds, it would be analogous to interpreting the first sale doctrine in copyright as permitting anyone who buys a CD or DVD to make unlimited copies and sell those copies. Clearly the first sale doctrine does not go that far in copyright, and I don’t think it should go that far in patent law with respect to self-replicating technologies like seeds. I don’t think a farmer who innocently plants commodity seeds that happen to contain the patented Roundup Ready trait, and who does not take advantage of that trait by using Roundup on his fields, should be liable for patent infringement. But I don’t think a farmer should be able to take advantage of the first sale doctrine to purposely acquire and grow patented seeds, benefit from the Roundup Ready characteristics by using Roundup on the crops, and then use the first sale doctrine as a defense.”

— Chris Holman, law professor at the University of Missouri-Kansas City specializing in biotechnology and intellectual property, “Bowman v. Monsanto: An Important Case for Agriculture Biotechnology,” Holman’s Biotech IP Blog, October 9, 2012

“While the Bowman v. Monsanto case involves Round-up Ready soybean plants it has implications to all instances where an organism could be genetically engineered to produce a useful product that it would not ordinarily generate. … [I]t is not difficult to imagine a sustainable method of producing pharmaceuticals by introducing the genetic blueprint to do so into a host organism and harvesting the generated material on an ongoing basis. In many ways, this is already occurring to a certain degree when pharmaceuticals are manufactured using tissue culture-related methods.

As concerns about sustainability and waste streams generated in the production of pharmaceutical products become more significant, it is likely that self-replicating technologies will be used as a means to overcome them. These technologies will not be easy to develop or commercialize. Continued investment in this means of manufacturing will require patent protection to be in place to prevent a single sale followed by unlimited reuse of these products. …

In the case of self-replicating technologies, the resulting invention is both a product that can be sold as well as a method for making the invention in the first place. … In order to protect and promote future investment in these techniques it will be necessary to establish strong case law that prevents these products from being sold once and allowing them to create new product indefinitely. If the SCOTUS overturns the Federal Court’s decision in Bowman v. Monsanto the consequences for the development of these technologies could be devastating.”

— Anthony J. Trippe, Pharmaceutical Patent Analyst, “Why Pharmaceutical Scientists Need To Keep An Eye on Bowman v. Monsanto,” Future-Science.com, 2013

“Stripping away all the legal arguments, this case is pretty simple. Monsanto has a patent and the soybean seed carries this patent forward in each new seed created by the original seed. … Bowman claims that once a patented item, such as a tractor, is sold, the patentees cannot prevent the farmer from using the tractor in any way he chooses. Correct! However, what Bowman does not seem to understand is that if the farmer attempted to reproduce the identical tractor and sell it, he could not do so without infringing upon a lot of patented items.

Bowman knowingly reproduced Monsanto’s patented seeds to the tune of millions of times and profited without paying Monsanto for its intellectual property and hard work. Bowman created an advantage for himself by not paying his fair share and that is unfair to all producers who play by the rules. In my opinion, Mr. Bowman should lose the case.”

— Gary Baise, attorney and farmer, “Supreme Court Hears Biotech Seed Case,” American Agriculturist, October 25, 2012

Importance of Intellectual Property Rights to Innovation

“Intellectual property is one of the most influential factors in creating innovation – in any sector. Innovators have got to be able to take reasonable risk and they should have the opportunity to be rewarded by their successes through profits and rights. They must know that the fruits of their labor are strongly protected by the law. Without that insurance, the incentive to innovate – to invest to take a risk – goes way down.

The agricultural innovations we’re talking about today are only possible because companies, universities and research institutions make huge investments in R&D. Of course, so does the government. Those investments would never happen without our longstanding system of patent protection, which enables innovators to get fair return while we continue to improve productivity for everyone’s benefit.

Strong intellectual property laws enable innovators and innovations in agricultural technology ranging from GPS-driven technologies in farm equipment to biotechnology enhanced seeds that increase efficiencies on the farm and improve crop yields. And this brings big benefits. According to the USDA, US revenues in 2010 from genetically modified crops were in excess of $75 billion.”

— Tom Donohue, CEO, U.S. Chamber of Commerce, remarks at “Agriculture: Growing Innovation and Opportunities,” December 19, 2012

“Patent protection for products of modern biotechnology is important because they are expensive to develop and easy to copy.”

— World Health Organization (WHO), “Modern Food Biotech, Human Health And Development: An Evidence-Based Study,” 2005

“To feed a growing world population, and to meet the competing demands on land from bioenergy, it is apparent that continued productivity growth is essential. Inasmuch as that depends on new and improved seed varieties, the heavy lifting will have to be done by private R&D investments, and the availability of secure, enforceable, and strong IPRs is, arguably, a necessity.

Seed companies need property rights to justify their substantial R&D investments. For example, the prospect of farmers saving a portion of their harvest to use as seed in the next period obviously reduces the ability of suppliers to recoup the cost of improved seeds over many growing seasons.”

— GianCarlo Moschini, Professor and Department Chair, Department of Economics, Iowa State
University, “Competition Issues in the Seed Industry and the Role of Intellectual Property,” Choices Magazine, June 2010

Importance of Biotechnology to Farmers & Agriculture

“There have been extraordinary, and I want to emphasize, extraordinary productivity gains in agriculture. In my lifetime, corn has increased in this country by 300 percent in terms of productivity – Soybeans and wheat, 200 percent. We’re creating more milk and our livestock is being raised more efficiently. In fact, according to recent studies, agriculture has been the second most productive aspect of the American economy since 1980. It’s fueled in part by what [U.S. Chamber of Commerce CEO] Tom Donohue suggested, which is innovation and research and seed genetics.

We just suffered through the most serious drought that this country has faced since the 1930s. Had we faced this drought without the seed genetics, we would have seen some serious crop losses. Indeed, it was a tough year for many producers. But notwithstanding the most difficult drought we’ve seen in the lifetime of everyone in this audience, we still had a corn crop that ranked in the top 10 in productivity in the United States’ history. And it’s a result of seed genetics and innovation. And it’s a result of farmers embracing new planting technologies that allow us to preserve and conserve water resources and still maintain and provide a crop.”

— U.S. Secretary of Agriculture Tom Vilsack, Remarks at U.S. Chamber of Commerce forum, “Agriculture: Growing Innovation and Opportunities,” December 19, 2012

“America’s farmers and ranchers will need to produce about 75% more food per acre by 2020 in order to help feed the more than eight billion people the United Nations expects by 2030. To meet that goal, farmers and ranchers will use the latest and most effective technologies to produce more with less. I support organic and conventional farming. But organic farming cannot produce the amount of food that is demanded in today’s world. Indulging in a romanticized image of the farming industry stands in the way of progress. Do we want a smart, sophisticated approach to food supply that we can depend on for safety, healthy choices, environmental stewardship and long-term sustainability? Or do we want to return to food shortages, higher prices and the days of two horses pulling a corn planter?”

— John Block, former U.S. Secretary of Agriculture, “A Reality Check for Organic Food Dreamers,” Wall Street Journal, December 23, 2012

“We want to grow more food without using more energy or harming natural environments, and we want new sources of energy that do not contribute to global warming or have adverse health effects. The problems raised by these fundamental biological and environmental questions are interdependent and ‘solutions’ that work at cross purposes will not in fact be solutions. Fortunately, advances in the life sciences have the potential to contribute innovative and mutually reinforcing solutions to reach all of these goals and, at the same time, serve as the basis for new industries that will anchor the economies of the future.”

— National Research Council of the National Academy of Science (NAS), Committee on a New Biology for the 21st Century: Ensuring the United States Leads the Coming Biology Revolution Board on Life Sciences, Division on Earth and Life Studies, “A New Biology for the 21st Century,” 2009

“If the growing world population is to be adequately fed, both in terms of quantity and quality, without further compromising the environmental services that the planet provides, then transgenic crops are a potential ‘tool’ giving options for ongoing sustainable development. …

Overall, the evidence strongly suggests that in both developed and developing countries, the adoption of transgenic crops can increase the farmer’s income. The increase in income to small-scale farmers in developing countries can have a direct impact on poverty alleviation and quality of life, a key component of sustainable development.”

— Julian Raymond Park et. al., “The Role Of Transgenic Crops In Sustainable Development,” Plant Biotechnology Journal, 2011

“GM technology has had a significant positive impact on farm income derived from a combination of enhanced productivity and efficiency gains. … In 2009, the direct global farm income benefit from biotech crops was $10.8 billion. This is equivalent to having added 5.8% to the value of global production of the four main crops of soybeans, maize, canola and cotton. Since 1996, farm incomes have increased by $64.7 billion.”

— Graham Brookes and Peter Barfoot, “Global Impact Of Biotech Crops 1996-2010,” PG Economics, 2011

Value of Agricultural Biotechnology to the Economy & Society

“Innovation, driven by our free enterprise system, has allowed us to efficiently develop and harness our abundant resources. We can produce more food, with less physical effort, at a lower cost, and with a smaller environmental impact than ever before. Our agricultural advantage has enriched and improved life in America—and well beyond the bounty that stocks our markets and pantries. Agriculture has vast industrial applications in sectors that change or improve the way we live.”

— Tom Donohue, CEO, U.S. Chamber of Commerce, remarks at “Agriculture: Growing Innovation and Opportunities,” December 19, 2012

“By 2030, the world population is predicted to reach 8.3 billion, compounding the need for food. A growing population and limited arable land require new approaches to meeting the world’s nutritional needs. A recent report by the National Research Council demonstrates that substantial progress is being made. In one example, the report estimated that through the use of biotechnology-enabled control of corn rootworm, 10 million acres of farmland produced $231 million in additional annual revenue from crop yield gains, reduced insecticide use by 5.5 million pounds annually, and eliminated 5.5 million gallons of water annually from the farming process.

According to the USDA, U.S. revenues in 2010 from genetically modified crops were approximately $76 billion. Beyond agriculture, based on the best available estimate, 2010 U.S. revenues from industrial biotechnology—fuels, materials, chemicals, and industrial enzymes derived from genetically modified systems—were approximately $100 billion. …

According to the USDA, agriculture is responsible for one out of every 12 jobs in America, and America’s farmers and ranchers are the most productive in the world. In 2011, agricultural exports reached record levels of sales—$137.4 billion, resulting in a $42 billion trade surplus. In 2010, revenues from genetically modified plants and microbes, a single economic indicator of the U.S. bioeconomy, were estimated in one assessment to account for approximately $300 billion in U.S. revenues, equivalent to more than 2% of gross domestic product.”

— The White House, National Bioeconomy Blueprint, April 2012

“In addition to farmers, seed suppliers, technology providers, and consumers also benefit from the adoption of GE crops in the United States. Biotechnology developers and seed firms benefit by charging technology fees and seed premiums to adopters of GE varieties. U.S. and foreign consumers may benefit indirectly from GE crops through lower commodity prices that result from increased supplies.”

— Jorge Fernandez-Cornejo and Margriet Caswell, “The First Decade of Genetically Engineered Crops in the United States,” USDA Economic Information Bulletin No. 11, April 2006

“We estimate that each dollar invested in [improving] agricultural yields has resulted in 68 fewer kgC (249 kgCO2e) emissions relative to 1961 technology ($14.74/tC, or ~$4/tCO2e), avoiding 3.6 GtC (13.1 GtCO2e) per year. Our analysis indicates that investment in yield improvements compares favorably with other commonly proposed [greenhouse gas] mitigation strategies. Further yield improvements should therefore be prominent among efforts to reduce future GHG emissions.”

— Jennifer A. Burney et. al., “Greenhouse Gas Mitigation By Agricultural Intensification,” Proceedings of the National Academy of Sciences, 2010

“The potential uses of modern biotechnology in agriculture include: increasing yields while reducing inputs of fertilizers, herbicides and insecticides; conferring drought or salt tolerance on crop plants; increasing shelf-life; reducing postharvest losses; increasing the nutrient content of produce; and delivering vaccines (Bonny 1999). The availability of such products could not only have an important role in reducing hunger and increasing food security, but also have the potential to address some of the health problems of the developing world. Achieving the improvements in crop yields expected in developing countries can help to alleviate poverty: directly by increasing the household incomes of small farmers who adopt these technologies; and indirectly, through spill-overs, as evidenced in the price slumps of herbicides and insecticides. Indirect benefits as a whole tend to have an impact on both technology adopters and non-adopters, the rural and urban poor.”

— World Health Organization (WHO), “Modern Food Biotech, Human Health And Development: An Evidence-Based Study,” 2005

“To counterbalance the predicted increase in the world population to up to nine billion people by 2050, and the related implication of climate change, science has to develop technologies that increase yields and productivity in a sustainable way, while lowering the demand for fertilisers and pesticides, and adapting crops to match the effects of changes in the environment.”

— European Commission Directorate-General for Research and Innovation, “A Decade Of EU-Funded GMO Research (2001-2010),” 2010

“The United Nations Food and Agriculture Organization has estimated that 923 million people were undernourished in 2007, an increase of 75 million over the 2003–2005 estimate of 848 million (FAO, 2008). Growing enough food worldwide to address this shortfall, as well as providing the higher quality food that will be expected by people living in countries where standards of living are improving, is an enormous challenge. This challenge will be compounded by the changing climatic conditions of the future, which will change the temperature and rainfall patterns of the world’s farmlands, and may also lead to inundation of low-lying fertile land. A better fundamental understanding of plant growth and productivity, as well as of how plants can be conditioned or bred to tolerate extreme conditions and adapt to climate change, will be key components in increasing food production and nutrition in all areas of agriculture to meet the needs of 8.4 billion people by 2030 (Census Bureau, 2008), while allowing adequate land for energy production and environmental services.”

— National Research Council of the National Academy of Science(NAS), Committee on a New Biology for the 21st Century: Ensuring the United States Leads the Coming Biology Revolution Board on Life Sciences, Division on Earth and Life Studies, “A New Biology for the 21st Century,” 2009

“The introduction of GE crops has reduced pesticide use or the toxicity of pesticides used on fields where soybean, corn, and cotton are grown. Available evidence indicates that no-till practices and HR crops are complementary, and each has encouraged the other’s adoption. Conservation tillage, especially no-till, reduces soil erosion and can improve soil quality. The pesticide shifts and increase in conservation tillage with GE crops have generally benefited farmers who adopted them so far. Conservation tillage practices can also improve water quality by reducing the volume of runoff from farms into surface water…”

— National Research Council of the National Academy of Science (NAS), “Impact of genetically engineered crops on farm sustainability in the US,” 2010

“New molecular methods that add or modify genes can protect plants from diseases and pests and improve crops in ways that are both more environmentally benign and beyond the capability of older methods. This is because the gene modifications are crafted based on knowledge of what genes do, in contrast to the shotgun approach of traditional breeding or using chemicals or radiation to induce mutations. The results have been spectacular. For example, genetically modified crops containing an extra gene that confers resistance to certain insects require much less pesticide. …

The rapid adoption of genetically modified herbicide-tolerant soybeans has made it easier for farmers to park their plows and forgo tilling for weed control. No-till farming is more sustainable and environmentally benign because it decreases soil erosion and shrinks agriculture’s carbon footprint. In 2010, crops modified by molecular methods were grown in 29 countries on more than 360 million acres. Of the 15.4 million farmers growing these crops, 90 percent are poor, with small operations. The reason farmers turn to genetically modified crops is simple: yields increase and costs decrease.”

— Nina V. Fedoroff, professor of biology at Pennsylvania State University and former president of AAAS, “Engineering food for All,” The New York Times, August 18, 2011

“Knowledge gained over the past 15 years that GM crops have been grown commercially indicates that the impacts on biodiversity are positive on balance. By increasing yields, decreasing insecticide use, increasing the use of more environmentally friendly herbicides and facilitating the adoption of conservation tillage, GM crops have already contributed to increasing agricultural sustainability. Overall, the review finds that currently commercialized GM crops have reduced the impacts of agriculture on biodiversity, through enhanced adoption of conservation tillage practices, reduction of insecticide use and use of more environmentally benign herbicides and increasing yields to alleviate pressure to convert additional land into agricultural use.”

— Janet E. Carpenter, “Impact of GM Crops On Biodiversity,” GM Crops, January/February/March 2011

“The evidence shows that the planting of GE crops has largely resulted in less adverse or equivalent effects on the farm environment compared with the conventional non-GE systems that GE crops replaced. A key improvement has been the change to pesticide regimens that apply less pesticide or that use pesticides with lower toxicity to the environment but that have more consistent efficacy than conventional pesticide regimens used on non-GE versions of the crops. In the first phase of use, herbicide resistant (HR) crops have been associated with an increased use of conservation tillage, in particular no-till methods, that can improve water quality and enhance some soil-quality characteristics. That farmers who practice conservation tillage are more likely to adopt GE crops suggests the two technologies are complementary.”

— National Research Council of the National Academy of Science (NAS), “Impact of genetically engineered crops on farm sustainability in the US,” 2010

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