Patent Rights With Seeds/Plants Essay

Pages: 5 (1691 words)  ·  Bibliography Sources: 5  ·  File: .docx  ·  Level: College Senior  ·  Topic: Business

Monsanto vs. Bowman & Intellectual Property

Monsanto has taken some major heat in recent months and years due to the extremely rigid enforcement of their patents and/or the planting agreements that they impose on the people that they sell their seeds to. While the patent directly in question is technically exhausted, Monsanto has emerged victorious in legal actions up to and including the United States Supreme Court under the premise that companies like Bowman have violated the terms of the agreements they entered into to acquire the seeds from Monsanto. While many people may not be a fan of want Monsanto is doing, they are technically within their rights and no one is forcing other companies to do business with Monsanto.


While Monsanto has emerged the victor in the Bowman case, this by no means makes the decision popular or well-received by people in scholarly and other spheres. One such reaction was offered by Amy Berg, who penned a treatise about the relationship between the doctrine of patent exhaustion and the concept of self-replicating technologies. As explained in the introduction for Berg's work, it has become clear that genetically engineering (GE) crops are on the rise but sound majorities (98%) of the farms that exist are family-run units. However, the money is talking when it comes to genetically-modified crops as the market for herbicide-tolerant soybeans. Indeed, the period from 1996 to 2004 reflected an herbicide-tolerant soybean income benefit of more than $6.4 billion in the United States alone (Berg).Buy full Download Microsoft Word File paper
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Essay on Patent Rights With Seeds/Plants Assignment

What has developed through all of that is described by Berg when it is said that "in order to promote innovation in genetics and biotechnology, developers of GE plants may obtain utility patents for plant tissue, seeds or whole plants. Seed companies who own the patent rights for GE plants use utility patents in conjunction with license agreements to restrict a famer's use of patented GE plant." In other words, the seeds that would be left unused from a harvested crop CANNOT be replanted unless the licensing company allows it. Bowman signed an agreement to that effect with Monsanto and then violated it. Monsanto called that a breach of contract and sued on those grounds. The fact that the patent in question was no longer in force was not a matter of consequence because that was not the relevant detail. Due to the licensing agreement that Bowman entered into and then violated, they were on the hook with Monsanto for not abiding by what was agreed to (Berg). Indeed, the restrictive license agreement that Monsanto asked Bowman to agree to was allowable so long as they "grant a license 'upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent is entitled to secure." In other words, since Bowman was allowed reasonable use of the seeds, they did derive a benefit. However, they were barred from using the seeds that were findable and usable later for a future planting and they did precisely that (Berg).

Another downside for Bowman is that he tried to get around the agreement by conflating the patent exhaustion doctrine and the agreement to which he signed on to. He suggested that the re-use and replication of the seeds was protected because the patent was exhausted. The Supreme Court said that was indeed not the case and said that Monsanto was within its rights to claim a breach. This new case was seen as concerning for Monsanto in that a victory for Bowman could squelch innovation. Indeed, it is not hard to notice that seeds are very easy to replicate and this is true even during normal business operations. If someone licenses or borrows a Dodge Viper, it would take a lot of time, money and equipment to replicate the Viper. Further, if someone tried to market or sell a Viper clone, the Dodge Motor company would have an airtight case. Much the same argument could be made for Monsanto but the replication happens automatically and any farmer knows that. The argument Monsanto would make is that if companies who use the seeds under license (patent or not patent) were able to use and reuse the each new generation of seed as they wished, it would basically force Monsanto out of business (or at least hurt them) and this would kill the chances that innovation and new ideas would come out of the farming market. United States Supreme Court Chief Justice John Roberts said basically that when he said "why in the world 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 seeds as they want?" (Managing Intellectual Property).

Further, some people suggest that what Bowman did is exceedingly uncommon and it is not fair or right to suggest that Bowman's tactics happen a lot in other situations and with other companies. As stated by Cami Ryan in an article, she said that "Bowman was using copies of the company's technology for personal gain, just as if he had copied music or software and sold it for a profit. He did not have that right and he knew it." Ryan goes on by saying that "without access to innovative crop varieties, we are hard-pressed to meet the challenges of a growing population, shrinking arable land base, environmental issues, disease, pests and drought (Ryan). Ryan further suggests that one should look at the point of patents in the first place. What some people say might suggest that patents are bad and without a proper or good function. However, they exist because companies need to protect their inventions so that they can generate the revenues necessary to pay for the startup and development costs of the product. This also needs to happen in a way that delivers a return on investment for shareholders. This is true in both the public sector as well as the private sector across time and Ryan notes that this is true for good reason. Even if some seeds that could be used are going to waste, they are going to waste for the greater good. Further, people like Bowman that enter into such agreements need to understand that they are held to them and that they will be held liable if they deviate from them. Ryan notes that Bowman himself admitted to doing precisely what he was barred from doing and he tried to use patent exhaustion to explain it. (Ryan).

However, the view about Monsanto is far from monolithic and singular. Indeed, Yee Wah Chin had a discussion about the subject and wondered aloud whether or not patent law and patent exhaustion should preclude Monsanto from doing what they are doing. However, Chin ups the ante after throwing aside the patent implications (and Chin did so for much the same reason as the other people cited in this case) by saying that there are perhaps antitrust implications when it comes to the barring of use of seed for replanting, such as what Bowman was subject to and accused of violating. Chin suggests that if there is a patent involved, it quite possibly could or should apply only to the first generation and not anything that is replicated and created later on. The prior-mentioned anti-trust possibility is predicated on the basis that there is an unreasonable restraint on trade. As mentioned before, some people make use of replanting while other rely on the seed distributors to do their job under a "division of labor" paradigm. However, Chin also notes that patent exhaustion being present is usually enough to allow a person to do whatever they wish with what they purchased so long as there is an "unconditional sale." Of course, the Monsanto sale to… [END OF PREVIEW] . . . READ MORE

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APA Style

Patent Rights With Seeds/Plants.  (2015, June 2).  Retrieved September 21, 2020, from

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"Patent Rights With Seeds/Plants."  June 2, 2015.  Accessed September 21, 2020.