Article

by Carey Gillam

Patent protection for genetically modified corn, soybeans and other crop must be limited so farmers can save their seeds and protect themselves against litigation, a public interest group said in a filing with the U.S. Supreme Court on Monday in a case involving global seed giant Monsanto Co.

The case that the high court will hear next year involving an Indiana soybean farmer Vernon Bowman is but a "microcosm of a systemic problem," and the outcome of the case could have far-reaching impacts as Monsanto and other biotech seed developers expand their dominance of agricultural seeds, according to the Center for Food Safety (CFS), which filed the amicus brief Monday in support of Bowman.

"It is a really critical moment for the court in terms of plant patenting," said CFS attorney Andrew Kimbrell. "Patenting should not interfere with a farmer's right to save seeds. They should not resell them or repackage them or become competitors of Monsanto, but the seed they buy they should be able to use them in a natural way for planting. This is not only about farmer rights, it's about farmer survival."

Monsanto and other seed developers charge premiums for their genetically altered seeds and closely guard use of the seeds carrying technological traits such as herbicide resistance. Monsanto requires growers to use the seeds only for a single crop, and prohibits them from saving the second-generation seeds from the harvested crop, ensuring farmers buy new seeds each season.

"The U.S. patent system protects - and should protect - the rights to easily replicated technologies like herbicide-tolerant seeds, just as it does for those who invent computers or life-saving medicines," said David Snively, executive vice president and general counsel for Monsanto in a statement.

But in its brief, CFS said it was illogical to argue that farmers' "non-inventive activities of planting and harvesting" were equal to a scientist inserting non-plant genetic material into plant DNA.

"Planting seed in the normal course of farming and having it reproduce is vastly and fundamentally different than genetic engineering," the brief states.

The case dates to 2007 when Monsanto sued for infringing its seed patents. Bowman said he bought the seeds as part of an undifferentiated mix of "commodity" seeds from a grain elevator, and that farmers had used such seeds for planting for decades. Commodity seeds come from farms that use biotech seeds as well as those that do not. No licensing agreements are required with the sale of such seeds.

Bowman argued that he should be able to use those second-generation seeds for a natural and foreseeable purpose of planting and that Monsanto's patent rights were exhausted after its initial sales of the seeds. Monsanto prevailed and Bowman was ordered to pay more than $84,000 in damages.

Bowman is one of more than a hundred farmers sued by Monsanto in recent years over unauthorized use of its seed technology. Many farmers favor the technology because it allows them to spray herbicide directly over crops to kill weeds and certain biotech crops more easily fight off damaging pests.

In its brief Monday, the Center for Food Safety said the current intellectual property environment related to transgenic crops has spurred a substantial privatization and concentration of the world's seed supply that has resulted in 10 multinational corporations holding approximately 65 percent of commercial seed for major crops.

Last year a group of organic and family farmers sued Monsanto over similar issues, saying the pervasiveness of genetically modified crops elevates the risk of contamination of their crops with patented GMO traits, and raises the risk they will be sued by Monsanto for patent infringement. Their suit challenged the validity of Monsanto transgenic patents and sought pre-emptive court protection from lawsuits that might be brought by Monsanto if its biotech traits were found in their fields.

U.S. District Court Judge Naomi Buchwald, for the Southern District of New York, threw out the case and criticized the groups for a "transparent effort to create a controversy where none exists. The plaintiffs appealed, and a hearing in the case - Organic Seed Growers & Trade Association vs. Monsanto - is scheduled before the Court of Appeals for the Federal Circuit in Washington on January 10.

(Reporting By Carey Gillam;editing by Sofina Mirza-Reid)