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How An Ind. Farmer's 'Cheap' Soybean Seeds Grew Into Showdown With Agribusiness Giant

Publication Date: 
February 15, 2013
Source: 
Greenwire
Author: 
Jeremy P. Jacobs

Center for Law and the Biosciences fellow Jacob Sherkow spoke with Greenwire's Jeremy P. Jacobs about Bowman v. Monsanto, and why the "notion of self-replicating technologies" could have a huge impact on other technologies like software and nanotechnology. 

What started with an Indiana farmer's purchase of soybean seeds from a local grain elevator has become the heart of a legal war with an agribusiness behemoth with a potentially large impact on agriculture and the biotechnology industry.

At the heart of the case that will be argued before the Supreme Court on Tuesday is this question: Can a biotech corporation restrict a farmer's use of seeds sprung from its genetically modified plants?

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"The notion of self-replicating technologies is a very big-ticket question both for Monsanto -- because they make seed, which grow into plants and make more seeds -- but it also applies to other areas of technology, such as software, nanotechnology," said Jacob Sherkow, a Stanford Law School fellow who specializes in patent law. "If the court were to take a broad tack, it could have huge effects on downstream technologies."

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Stanford Law's Sherkow said the justices typically steer clear of often complicated patent cases. In this instance, they will likely grapple with the lower court's definition of a doctrine of patent exhaustion and whether it applies to Monsanto's licenses.

"When is a sale really a sale?" Sherkow asked. "What if I sell something to you but it's not really a sale because you can only do certain things with it?"

The Court of Appeals for the Federal Circuit ruled Monsanto could attach conditions to the selling of its products such as the licenses. But the Supreme Court hasn't delved deeply into that issue, Sherkow said.

More broadly, he said, that issue could apply to many other industries that would like to exercise greater control over the use -- and secondhand sale -- of their products. Software and nanotechnology, Sherkow said, are just two examples of industries that could be affected by the ruling.

"If the court gives a lot of leeway to what is considered a conditional sale, I think this will have a lot of downstream effects for consumers -- not just in seed, but all areas of technology where companies want to increase their revenues through downstream sales," he said.