Academic journal article Journal of Corporation Law

The Future of Farming after Bowman V. Monsanto

Academic journal article Journal of Corporation Law

The Future of Farming after Bowman V. Monsanto

Article excerpt

I. Introduction II. Background   A. History of Roundup Ready   B. Saving and Replanting Seed     1. Agronomic Practices     2. Breeding Methods     3. Reproduction Methods   C. Judicial Consideration in Bowman v. Monsanto   D. Judicial Consideration in Monsanto v. Schmeiser   E. Commonalities Between Bowman and Schmeiser III. Analysis   A. Intent to "Make or Use"   B. Actions   C. No Actual Use   D. Public Policy IV. Recommendations   A. Public Relations Benefit to Monsanto   B. Legal Benefit to Monsanto   C. Avenues for Change   D. Best Practices for Farmers V. Conclusion 

I. INTRODUCTION

The United States Supreme Court and Congress have failed to address the concerns of farmers who wish to save and replant first generation Roundup Ready seed after the patent expires. Due to Monsanto's patented second generation Roundup Ready 2 Yield trait with the same herbicide tolerance, farmers are unable to distinguish between the traits in their fields. The presence of the patented trait in a farmer's field would likely lead to a finding of patent infringement under the current law.

Competing interests between the patent holder and the user have thus far favored the patent holder. (1) The changing landscape of products available in the market presents potential problems for farmers who wish to take advantage of technology that has passed into the public domain after the patents expire.

This Note analyzes hypothetical cases of farmers who have their field contaminated through no act of their own and those farmers who may cause, or contribute to, the contamination of their field. The distinction may be important because greater protection should be offered to the farmer who does not know of, and does not cause, the patent infringement. This Note ultimately recommends that the law be changed, either by the Court or by Congress, to provide protection against patent infringement where the patented trait contaminates the farmer's field.

II. BACKGROUND

The Court's recent Bowman v. Monsanto decision raises many questions as to the future of the law controlling patent infringement of self-replicating technologies. This Note addresses some potential pitfalls of the law as it stands. Most importantly, this Note examines potential patent infringement by farmers using Roundup Ready technology after the first generation glyphosate resistant trait loses patent protection in soybeans and other crops.

A. History of Roundup Ready

Monsanto released the first commercial biotech trait in 1996 when it introduced Roundup Ready soybeans. (2) The trait was known internationally as GTS 40-3-2. (3) Roundup Ready soybeans are resistant to the broad spectrum herbicide glyphosate, which Monsanto manufactures under the brand Roundup. (4) The United States Department of Agriculture (USDA) granted regulatory approval for Roundup Ready soybeans in 1994. (5) The United States Patent and Trademark Office (USPTO) granted Monsanto three patents to protect the invention, which allows crops with the traits to survive a glyphosate application. (6)

Farmers quickly adopted the new trait, and by 1999 half of all soybeans that U.S. farmers planted contained the trait. (7) Monsanto achieved almost full market penetration, and by 2005 nearly 87% of soybean acreage was Roundup Ready. (8) In addition to Roundup Ready soybeans, Monsanto released a glyphosate-tolerant variant of most commercial U.S. crops. In 1998, Monsanto released Roundup Ready corn. (9) Adoption was slower, but still significant, reaching approximately 40% of U.S. acres by 2005. (10) Monsanto also released Roundup Ready canola in 1997. (11) Monsanto's patents on Roundup Ready technology expired in 2014, allowing farmers to save certain varieties of seed to replant the following year beginning in 2015. (12)

Monsanto developed and patented a new version of the glyphosate tolerant trait, and first launched Roundup Ready 2 Yield soybeans in 2008. …

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