In Standing Up for Big Ag, Are Universities Undercutting Their Own Researchers?

February 5th, 2013

The Chronicle of Higher Education
By Goldie Blumenstyk

Image courtesy of William Wesen

Image courtesy of William Wesen

In a case before the U.S. Supreme Court this month, advocates for academic researchers are urging the justices to reverse a patent-infringement decision that has given the Monsanto Company broad authority to restrict scientists’ study of genetically modified seeds. The decision, the advocates say, not only hurts farmers and fuels higher food prices; it also contributes to “the suffocation of independent scientific inquiry into transgenic crops.”

Not surprisingly, the case has also drawn the attention of higher education’s research establishment—but it’s pulling for the other side.

The friend-of-the-court brief that advocates for the academic scientists comes from two nonprofit organizations, the Center for Food Safety and Save Our Seeds. It describes professors at two universities who were forced to abandon their research on sugar beets grown from Monsanto’s patented Roundup Ready transgenic seeds, because the company insisted on the right to block publication of their findings.

The brief also recalls a 2009 statement by 26 prominent university scientists who protested to the Environmental Protection Agency that because of the restricted access allowed under patents like the one in the Monsanto case, “no truly independent research can be legally conducted on many critical questions regarding the technology.”

Some two dozen research universities and higher-education organizations, including the Association of Public and Land-Grant Universities and the Association of American Universities, filed another friend-of-the-court brief that sides with Monsanto. Many of them are active in the patenting and commercialization of research themselves, in some cases lucratively so. (One is North Dakota State University, whose researchers were thwarted in their sugar-beet research.)

In their brief, the universities and associations contend that if the Supreme Court reversed the decision in the case, known as Bowman v. Monsanto (No. 11-796), it would weaken patent rights for genetically modified seeds, as well as for other artificial, progenitive technologies such as stem cells, bacterial strains, and organic computers.

Without strong patents, they say, companies will have fewer incentives to license such inventions from universities and then invest in developing them into marketable products. “Private-sector entities will incur these costs only if they are properly incented to do so,” the universities’ brief says. “Patents, and the valuable exclusionary rights they confer, provide the necessary incentive.”

George A. Kimbrell, senior lawyer for the Center for Food Safety and Save Our Seeds, calls the universities’ stance disappointing. “It’s a very strange position for institutions that should be promoting the freedom of scientific inquiry,” he says. “Unfortunately, they’ve become beholden to the money and put that before their basic mission.”

“We don’t see it that way,” counters R. Michael Tanner, chief academic officer and vice president at the land-grant universities’ group. He says his association and the others filed the brief in support of a “fundamental principle of patent law,” not the company. “We did not weigh in on the side of Monsanto or its business practices,” says Mr. Tanner.

Mr. Kimbrell, however, says that for farmers and academics, “it is the patent that is the problem.”

That may require some explanation.

Until 2001 most seed developers would obtain intellectual-property protection under the Plant Variety Protection Act, a federal law that included specific exemptions that allowed scientists to conduct research on the seeds and farmers to harvest seeds produced by the crops and use them in subsequent plantings. In 2001 the Supreme Court upheld the protection of modified seeds under patent law—an intellectual-property regime that provides no explicit exemptions.

Now, says Mr. Kimbrell, most companies pursue patent protection for their seeds. And according to the center’s brief, the companies then aggressively seek to enforce the patents by investigating and suing farmers who save second-generation seeds or find the seeds growing on their land.

The Center for Food Safety and Save Our Seeds say Monsanto has filed at least 142 patent-infringement cases against farmers, including the one in the case before the court, which was filed against a septuagenarian Indiana farmer named Vernon Hugh Bowman in 2007. A federal district court granted summary judgment in favor of Monsanto, and the U.S. Court of Appeals for the Federal Circuit upheld that decision in September 2011.

Farmers who buy Monsanto Roundup Ready seeds, which are popular because they are designed with a gene that enables them to survive even when the fields in which they are planted are treated with Monsanto’s Roundup weedkiller, must agree the seeds are for one-time use. Mr. Bowman was a Monsanto customer but also acquired some second-generation Roundup Ready seeds from a local grain elevator and planted them—in effect, taking advantage of the seeds’ gene traits without compensating the company.

Monsanto contends that such a use violates its patent. Mr. Bowman argues that, under a 150-year-old principle known as the “exhaustion doctrine,” Monsanto had used up its patent rights once it sold the seeds.

Although a victory for Monsanto could put even more momentum behind the very system that Mr. Kimbrell says is inhibiting public-interest academic research,
Mr. Tanner says other issues of academic importance are also at stake in the case.

Given all the academic research now under way involving self-replicating cells and similar technologies, the universities worry about how the Supreme Court will treat that doctrine. Says Mr. Tanner, if a patent on those kinds of technologies “is going to have any meaning, you can’t allow the exhaustion [argument] to work.”

The case is scheduled for oral argument on February 19, and a decision is expected by July.

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