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It's THE case: J.E.M. AG Supply v. Pioneer Hi-Bred

(Oct. 4, 2001 – CropChoice opinion) – J.E.M. AG Supply v. Pioneer Hi-Bred International, Inc. It’s the case that the U.S. agricultural community is watching. And the Supreme Court yesterday began considering it. The way family farmers see it, what the Court decides will determine whether they’ll lose their centuries-old right to save seed for their own use. Fat chance of the Court ruling in their favor, at least in the opinion of one expert on the subject.

Monsanto, Pioneer (now part of Dupont), Aventis and other biotech companies are patenting seeds to increase their profits. They want farmers returning year after year to buy new (expensive) seed, along with the chemicals to apply to their crops. Were the Court to rule in favor of Pioneer and were Congress to remain subservient to the billion-dollar biotech industry and its seed patents, farmers would move one step closer to being contract workers in the ongoing industrialization of American agriculture. Serfdom, here we come.

The U.S. Court of Appeals, in upholding a lower court ruling that patents on Pioneer genetically engineered corn seed were valid, concluded that title 35, section 101 of the United States Code (part of the Patent Act) "includes seeds and seed grown plants."

This section states that "[w]ho[m]ever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" can get a patent to protect their work.

Based upon decades of case and statutory law, Kansas State University agricultural lawyer Roger McEowen predicts that the Supreme Court will rule in favor of Pioneer. This would uphold "the right of a seed company to achieve iron clad protection for its bioengineered products by allowing general utility patents in addition to a PVPA (Plant Variety Protection Act) certificate."

If the Court somehow failed to come through for agribusiness, rest assured that Congress would. Biotech lobbyists would descend upon lawmakers to ensure the sanctity of their patents.

Congress first afforded the creators of plants protection for their "inventions" in 1930 with passage of the Plant Patent Act. But, legislators restricted the Act’s reach to asexually reproducing plants, which rely on grafts or cuttings for propagation rather than seeds.

Forty years later, Congress turned its attention to sexually reproducing plants, which include most of the crops we humans eat. The Plant Variety Protection Act of 1970 gave the creators of hybrid seed lines protection, but also allowed farmers to save seed for their own use.

Apparently, a decade of farmers saving their soybean and wheat seeds, and thus holding on to a modicum of freedom from the shackles of agribusiness, was too much for the industry.

Alas, the Supreme Court changed all that in 1980 when, with its decision in Diamond v. Chakrabarty, it reversed the tendency of the U.S. Patent and Trademark Office and the federal courts to avoid granting utility patents for living matter. The Court found that Chakrabarty, a microbiologist working for General Electric, had used his own labor, not nature, to create a crude oil-eating bacterium; it was novel and of "significant utility" and …patentable.

A few years later came the application for a patent on a corn plant featuring loads of amino acids. The Patent and Trademark Office initially rejected it, but the Board overseeing the Office reversed that by deciding in Ex parte Hibberd that "neither the PPA (Plant Patent Act) nor the PVPA (Plant Variety Protection Act) expressly excludes any biological subject matter from protection under Section 101 [utility patents]."

Sosamma Samuel-Burnett of Waide and Associates, a Tupelo, Mississippi law firm representing farmers in patent infringement lawsuits, points out a problem with the reasoning behind utility patents on sexually reproducing plants.

"Even if a utility patent protects the patent holder in terms of the first generation of seed," Samuel-Burnett explains, "there is considerable question as to whether that same patent can extend to the progeny of that seed."

Let’s hope her argument carries the day when the Supreme Court decides the Pioneer case.

For more information, visit: www.supremecourtus.gov

Please see related CropChoice piece by Colorado farmer David Dechant: Pioneer v. J.E.M AgSupply may sprout rude awakening