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Monsanto Receives Warm Reception in High Court

Reportedly 'hostile' justices question 'basic activity of farming'

Farmer Vernon Hugh Bowman, 75, outside the Supreme Court on Tuesday, Feb. 19, 2013. (Photo: J. Scott Applewhite/AP)

Observations from Tuesday's Supreme Court hearing between the Monsanto corporation and Indiana soybean farmer Hugh Bowman indicate that the sympathy of the nine justices leaned heavily towards the agro-chemical giant while heaping skepticism on the arguments made on behalf of the small farmer.

Presenting his case to the court, Bowman's attorney Mark Walters argued that based on the principle of "patent exhaustion," patent rights to seeds do not extend beyond the first generation.

However, according to reports, Walters' arguments were received with 'hostility' from the bench as he was "peppered with skeptical questions from almost every justice."

“The exhaustion doctrine permits you to use the good that you buy,” said Obama-appointed Justice Sonia Sotomayor. “It never permits you to make another item from that item you bought.”

Reporting on the other courtroom reactions, Bloomberg News writes that a majority of the nine justices signaled support for Monsanto's argument:

“Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?” Chief Justice John Roberts said.

He and other justices signaled that they view seeds harvested from patented crops as new products with fresh patent protections.[...]

Justice Stephen Breyer said federal law lets a purchaser use patented soybeans for a variety of purposes, such as feeding animals or one’s family, or making “tofu turkeys.”

“What it prohibits is making a copy of the patented invention, and that is what he did,” Breyer told Bowman’s lawyer.[...]

“That’s all he is prevented from doing,” [added Justice Antonin] Scalia. “He can plant and harvest and eat or sell. He just can’t plant, harvest, and then replant.”

Mr. Walters responded to onslaught saying, “we disagree that the activity of basic farming could be considered making the invention.”

Anticipating a corporate-friendly reception in the high court, representatives from sustainability advocacy groups the Center for Food Safety (CFS) and Save our Seeds (SOS)—who are supporting Bowman's appeal—wrote in an op-ed Tuesday that this particular logic is troubling because "it is the nature of seeds and all living things, whether patented or not, to replicate." They continue: 

Monsanto's claim that it has rights over a self-replicating natural product should raise concern. Seeds, unlike computer chips, for example, are essential to life. If people are denied a computer chip, they don't go hungry. If people are denied seeds, the potential consequences are much more threatening. 

According to the New York Times, Monsanto's attorney received a far warmer reception, saying that Seth P. Waxman, a former United States solicitor general, "was allowed to talk uninterrupted for long stretches, which is usually a sign of impending victory."

The Times added that "the justices appeared alert to the consequences of their eventual ruling."

As critics worry, if the justices side with Monsanto in this case, the ability of corporations "to own products of life" will be further ensconced in judicial precedent, further solidifying the ability of large agro-chemical firms to dictate the lives and practices of the world's farmers.

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