Monsanto Award of $1 Billion Against DuPont Reveals New Dimension of Genetic Patent Wars

August 13, 2012

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Joe Wright
Activist Post

The legal battle between Monsanto and farmers around the world continues unabated. On one hand, farming groups of all sizes, as well as seed businesses, are increasingly suing Monsanto for widespread genetic manipulation; and also to counter Monsanto's own vast patent infringement attacks against those unwitting enough to have their (even organic) crops cross-pollenated by Monsanto's GM products.

However, Monsanto exerts an overwhelming amount of pressure for perceived patent infringements, constantly suing farmers for their contamination of the farmers' own land. Aside from being a billion dollar industry with their biotechnology used in genetically engineered seeds and companion products like Roundup herbicide, they use patent infringement lawsuits to thickly line their coffers. And apparently they have the support of the legal system in doing so.

A huge verdict has come down on the side of Monsanto in the absurd amount of $1 billion to be paid by competitor DuPont. While it might seem like something to almost be happy about, since DuPont is yet another mega chemical corporation which has been implicated in damage to the environment and human health, this potentially sets a bad precedent to be cited in future legal verdicts, thus giving Monsanto even more legal standing and power. Perhaps most ominous of all, this legal victory was granted for a product that was never even on the market, taking on a new dimension in the area of patent infringement. (Source)

TechDirt makes the following particularly salient points about the implications of this verdict against DuPont's never-released Optimum GAT soybean line:

Normally, companies can build on top of others' products as patents are set to expire, so they're ready to launch once the patent has expired. But, in this case, even trying to build new offerings in a lab for use later is apparently an insane billion dollar issue. Even worse, it means that any real competition, which will create more market-reasonable prices, gets significantly delayed as no one can prepare for when the patent expires. (Source)

Beyond this, however, is the aspect that this verdict highlights the lack of regulation in the genetically modified food industry. In the world of pharmaceuticals and medical devices, for example, 35 U.S.C. § 271(e) specifically offers a research exemption for companies engaged in testing other products for development of their own proprietary offerings. This is presumably done to increase competition and allow for the development and introduction of low-cost generics in a timely manner.

The verdict against DuPont* stifles competition by creating a monopoly on a certain form of agriculture. This gets into the convoluted world of patent law and territoriality, which ultimately leads to potential outsourcing of research to later be brought back to the U.S. when patents hit their expiration date. For those with a strong stomach, these legal and ethical arguments can be sifted through in the comments section HERE.

Regardless of the minutiae of patent law, enforcement, and research outsourcing, the central issue remains that even in the world of the mega-chemical apparatus, Monsanto currently holds favor. Furthermore, it solidifies the position that Monsanto is pursuing against the individual farmer in cross-contamination claims, which have even involved Monsanto trespassing on private property, sampling a crop, then suing for royalties. This has led to the destruction of family businesses and farmer suicides.

And where does it stop? Here are some interesting questions and answers posed by commenters to the above-linked comment section at patent law blog Patently-O.

I own an apartment. Someone builds a drivein movie next door. Can they charge me the price of a ticket if I sit in my apartment and watch the movie?

I send you a 'free gift' in the mail. A note says, if you don't return the free gift in two days, you owe me a million dollars. Can I collect?

HBO broadcasts its programming into the public domain. You watch it on your TV. Can they collect a fee?

A patented dog with cute fur escapes. I find the a puppy in the wild that has cute fur. I breed the dog, and sell its puppies. It turns out, the puppy has the patented genes. Am I an infringer?

A hunter with dogs pursues a fox. Another man kills its and takes the fox home. Does the second man owe the first damages?

"I send you a 'free gift' in the mail. A note says, if you don't return the free gift in two days, you owe me a million dollars. Can I collect?"

Do you have patent on methods of opening mail, wherein the mail comprises a free gift and a note setting a deadline for returning the gift, and wherein the note is read after the mail is opened?

If so, you can sue for patent infringement. Just ask suckie.

Next time suckie goes fishing and catches the patented fish from the river, he just might owe Monsanto or its ilk damages for patent infringement.

A patented fly lands on the counter. Suckie swats it. How much does suckie (owe) Monsanto for his infringement?

Suckie mows his grass; and then suckie promptly receive a notice of infringement from Monsanto telling suckie that suckie's lawn has patented grass in it, and that Monsanto is the exclusive supplier of lawn services for patented-grass lawns. You owe $100/week, the notice intones, for Monsanto's expert patented-lawn care services.

And the beat goes on.

With new verdicts like this recent one, there is a fortress being built against anyone who wishes to opt-out of this provably damaging form of synthetic agriculture.

As some of the comments above reveal, this doesn't stop with the patenting of one single form of agriculture; an army of lawyers at the behest of mega-corporations are arrayed on the side of patenting all life. In the most telling example, over the last 30 years there have been 40,000 patents created and accepted on genes, comprising a full 20% of the human genome. (Source)

The dialogue must continue if we are to retain our rightful ownership over the food we grow and consume, as well as the entire natural world in which we live. Or are we willing to accept that this is something we simply must compromise (or sacrifice completely) for technological advancement as a species?

Please offer your viewpoints below in the comments section.

*This case is set for review by the Court of Appeals for the Federal Circuit.