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Amici in Bowman v. Monsanto Emphasize Vital Role of Patent Protection

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WASHINGTON, DC, Jan. 24 – In amicus briefs filed with the U.S. Supreme Court, representatives from a wide array of industries argued that Bowman v. Monsanto, which the Court will hear in February, could jeopardize some of the most innovative research taking place today – not only in agriculture, but in industries from medicine to environmental science that rely on patent systems to make R&D investments economically viable.

In its brief, the (ASTA) said that, “[Under Bowman's proposed rule,] [i]nvestment American Seed Trade Association in patented seed technology, which is currently on the order of billions of dollars a year, would be expected to slow to a trickle; private firms would have little incentive to invest the substantial resources required to develop improved seed technology if their patent rights were basically forever extinguished upon the very first sale. And for those few stalwart developers remaining in the business, those companies would have to recoup their research and development and regulatory costs—and earn a return on investment—all through a limited number of transactions with first-time customers. The price of seed in such circumstances would likely be so prohibitively expensive that few farmers could afford it, and farmers (and the public) would be deprived of the current and future benefits of enhanced seed.”

In his brief, Professor , University of Missouri – Kansas City, said, “The potential impact of Christopher M. Holmanthis case goes well beyond Monsanto and soybeans. A decision that results in the exhaustion of patent rights in copies of self-replicating products could dramatically undermine investment in a host of promising green technologies for sustainably feeding, fueling and healing the world. It might also discourage commercialization of synthetic biology, the much heralded next iteration of the biotechnology revolution.”

In their brief, an esteemed group of academic and professional economists stated that, “[A] ruling that the first sale of a patent trait or seed exhausted all patent right would cause significant economic harm—higher prices, lower output, and decreased competition. Seed and trait innovators would have to charge a price for the first sale that captured the full value of the invention. Such high upfront costs would be problematic for farmers with highly variable income, requiring long-term borrowing at higher interest rates. Moreover, that upfront investment would lock farmers into a particular seed choice for years, stifling the competition—and the resulting stimulus to innovation—that occurs as farmers seek out the best new seed varieties from season to season.” (The writers of this brief specialize in agriculture economics, industrial organization, intellectual property, the economics of innovation. They are of the University of Virginia, of Iowa State Dr. Kenneth G. Elzinga Dr. Dermot J. Hayes University and , a vice president of Cornerstone Research, and , a vice Dr. Vandy HowellDr. Anne Layne-Farrarpresident of Charles River Associates).

The (BIO) argued in its brief that, “[P]reserving the patentee’s right to make Biotechnology Industry Organization the lifesaving vaccines, medical treatments, diagnostics, and other cutting-edge scientific products that are predicated on replicable forms of technology allows biotech innovations to be disclosed to the public without eviscerating the patent’s protections at the moment of the first sale. With the right to make their patented product or process protected, patent holders can undertake prolonged, stage-by-stage development in partnership with other researchers and developers confident that cooperative use of their inventions will not imperil their patent rights.”

The writes, “If the doctrine of patent exhaustion were improperly Intellectual Property Owners Association extended to the routine growth of recombinant host cells, this could have a devastating effect on investment in the production of new biologic drugs made from recombinant cells. If patents on recombinant cells used to make new drugs could be easily circumvented by reliance on the exhaustion doctrine, the deleterious effects on the pharmaceutical industry could be even greater than in the agricultural arena.”

Additionally, a group of 22 colleges, universities, and research organizations led by the Wisconsin Alumni Research (WARF) writes, the Bayh-Dole Act “was designed to encourage public access to federally funded inventions through the use of the patent system and collaboration between research institutions and private sector entities. Reversing the Federal Circuit would undermine this fundamental objective of Congress. To ensure the ongoing success of Bayh-Dole and the technology transfer system, this Court should affirm the Federal Circuit’s holding that Bowman infringed Monsanto’s patents by “making” new seeds.

The case concerns the infringement of Monsanto’s patents associated with genetically engineered soybeans, which contain patented biotechnology that enables the plants to tolerate a widely-used herbicide. The soybeans are popular with growers nationwide, because Monsanto’s technology enables growers to apply the herbicide after their crops have been planted, mitigating the yield-robbing weeds in their field without harming the soybean plants. The petitioner in this case (Bowman) obtained soybeans containing the technology from a local grain elevator and, over nine years, reproduced them in violation of the patents.

Other amici who filed briefs in support of Monsanto’s position include, the numerous biotech companies and numerous state soybean American Soybean Association associations, American Sugarbeet Growers, Growers for Biotechnology, BayhDole25 Inc., BSA/the Software Alliance, CHS, Inc., CropLife America, CropLife International, National Corn Growers Association, National Association of Wheat Growers, Pioneer Hi-Bred and (WLF). the Washington Legal Foundation
Interested parties can access more information about the case, its history, Monsanto’s brief, amicus briefs, and the U.S. government’s brief online at: www.innovationatstake.com.

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