Supreme Court Rules in Favor
of Seed Patenting

Los Angeles Times December 11, 2001
Patent Ruling Aids Seed Biotech Firms;
Courts: Analysts say the Supreme Court is taking a tough stance to
strengthen intellectual property rights.

MELINDA FULMER, TIMES STAFF WRITER

In a victory for companies that develop genetically modified plants,
the U.S. Supreme Court ruled Monday that seeds and seed-grown plants
can be patented.

The 6-2 ruling, which upheld a court of appeals decision, strengthens
the intellectual property rights of the nation's largest seed
biotechnology companies.

If these protections had been struck down, companies such as DuPont,
Monsanto Co. and Sygenta would have seen hundreds of patents
invalidated or restricted, giving other companies and farmers access
to their technology without having to pay for it. "We have spent
hundreds of millions, if not billions, to bring forth our products,
some biotech solutions, some not," said Monsanto spokeswoman Lori
Fisher. The court "clearly wanted to protect the rights of investors."

With biotechnology advancing at a rapid pace, the ruling sends a
signal that the nation's highest court is taking a tough stance on
intellectual property rights in every industry, said analyst Donald
Carlson of J.P. Morgan.

The U.S. Patent Office has granted patents to plants for 16 years.

To date, more than 1,800 patents have been issued for plants and plant
parts.

J.E.M. Ag Supply, an Iowa seed firm, brought the legal challenge after
it was sued for patent infringement by DuPont's Pioneer Hi-Bred unit
for reselling 17 patented varieties of its corn.

J.E.M. had argued that because hybrids are not mentioned in the Plant
Protection Act, these products are regulated by the Plant Variety
Protection Act of 1970, a less restrictive certificate program
administered by the Department of Agriculture.

Putting regulation under that program would have hurt biotech
companies because it would not have allowed Pioneer and other seed
companies to collect licensing fees for seeds used in research or for
seeds that farmers collected from their fields and replanted.

Justices struck down J.E.M.'s argument, saying that because seed-grown
plants qualify for the less-restrictive USDA certificate program
doesn't mean they can't be patented.

"Denying patent protection simply because such coverage was thought
technologically infeasible in the 1930s, however, would be
inconsistent with the forward-looking perspective of the utility
patent statute," said Justice Clarence Thomas, writing for the court's
majority.

But critics say the ruling perpetuates a system that slows the pace
and diversity of research and punishes farmers by driving up costs.

But biotechnology proponents claim that protecting the profits of
these firms ensures that new, more efficient varieties of plants will
keep coming to market.

"Intellectual property rights are every bit as important to the seed
industry as they are to the software industry," said analyst Donald
Carlson of J.P. Morgan in New York. "If your competitor can quickly
[come out with a new product] by stealing your germ plasm, your
advantage in the marketplace is substantially diminished."

"Intellectual property rights are every bit as important to the seed
industry as they are to the software industry."