Oral Arguments Monsanto vs Bowman reveals that Supreme Court justices are holding nature hostage to Monsanto.

The Supreme Court recently heard oral argument on February 19th in the case of vs. Bowman. A copy of the transcript can be obtained here.

While Bowman v. has been framed as a ‘David and Goliath’ dispute between a lone-wolf farmer and a global , the Court cut to the chase with Chief Justice Roberts asking Petitioner’s counsel at the outset:

“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?”

is arguing if a farmer uses the seeds derived from a “patented” product. The seeds. However, at issue is not whether there is a by a farmer who plants seed derived from a second generation.

At issue in essence is whether ’s patents are actually legal and don’t violate .

As any person who has any clue about biology realizes, a gene or , produces a desired effect, generally known as a phenotypic expression. interact with the whole organism via , with sometimes unintended effects, and a is intertwined with the general organism.

’s patents generally consist of a recombinant DNA molecule that contain a that has been genetically modified for a specific trait. Their patents not only patent the modified nucleotide but also encompass the genomic DNA of a maize plant, or seed.

’s current , (example event mon 87427 and the relative development scale Paent number EP 2503872 A1), invokes the following claim:

“The invention provides a recombinant DNA molecule comprising a nucleic acid molecule comprising a selected from the group consisting of SEQ ID NO: 1-8. The invention also provides a recombinant DNA molecule formed by the junction of an inserted heterologous nucleic acid molecule and genomic DNA of a maize plant, , or seed. The invention also provides a recombinant DNA molecule derived from event MON 87427, a representative sample of seed having been deposited with the American Type Culture Collection (ATCC®) under Accession No. PTA-7899. The invention also provides a recombinant DNA molecule that is an amplicon diagnostic for the presence of DNA derived from event MON 87427. The invention also provides a recombinant DNA molecule that is in a maize plant, , seed, progeny plant, plant part, or commodity product derived from event MON 87427.

The invention also provides a recombinant maize plant, seed, cell, or plant part thereof comprising a nucleic acid molecule having a selected from the group consisting of SEQ ID NO: 1-10. The invention also provides a recombinant maize plant, seed, cell, or plant part having tissue-selective tolerance to glyphosate herbicide treatment. The invention also provides a recombinant maize plant, seed, cell, or plant part, the genome of which produces an amplicon comprising a DNA molecule selected from the group consisting of SEQ ID NO: 1-10 when tested in a DNA amplification method.

The invention also provides a maize plant or seed, wherein the maize plant or seed is derived from event MON 87427. The invention also provides a maize plant or seed, wherein the maize plant or seed is a hybrid having at least one parent derived from event MON 87427.

The invention also provides a nonliving plant material comprising a recombinant DNA molecule selected from the group consisting of SEQ ID NO: 1-10.

The invention also provides a microorganism comprising a nucleic acid molecule having a selected from the group consisting of SEQ ID NO: 1-10. The invention also provides a microorganism that is a .

The invention also provides a commodity product produced from event MON 87427 and comprising a nucleic acid molecule having a selected from the group consisting of SEQ ID NO: 1-10, wherein detection of a in a sample derived from a commodity product is determinative that the commodity product was produced from event MON 87427. The invention also provides a commodity product selected from the group consisting of whole or processed seeds, animal feed, oil, meal, flour, flakes, bran, biomass, and fuel products. The invention also provides a method of producing a commodity product by obtaining a maize plant or part thereof comprising event MON 87427 and producing a maize commodity product from the maize plant or part thereof.

The invention also provides a method for controlling weeds in a field by planting MON 87427 plants in a field and applying an effective dose of glyphosate herbicide to control weeds in the field without injuring the event MON 87427 plants. The invention also provides a method for controlling weeds in a field, wherein the effective dose of glyphosate herbicide is from about 0.1 pound to about 4 pounds per acre.

The invention also provides a method of producing a maize plant that tolerates application of glyphosate herbicide by sexually crossing a event MON 87427 plant comprising a nucleic acid molecule comprising a selected from the group consisting of SEQ ID NO: 1-10 with a second maize plant, thereby producing seed, collecting the seed produced from the cross, growing the seed to produce a plurality of progeny plants, treating the progeny plants with glyphosate, and selecting a progeny plant that is tolerant to glyphosate. The invention also provides a method of producing a maize plant that tolerates application of glyphosate herbicide by selfing a event MON 87427 plant comprising a nucleic acid molecule comprising a selected from the group consisting of SEQ ID NO: 1- 10, thereby producing seed, collecting the seed produced from the selfmg, growing the seed to produce a plurality of progeny plants, treating the progeny plants with glyphosate, and selecting a progeny plant that is tolerant to glyphosate.

The invention also provides a method of producing hybrid maize seed by planting event MON 87427 seed in an area, growing a maize plant from the seed, treating the plant with an effective dose of glyphosate herbicide prior to pollen formation to make the plant male sterile without injuring the plant, fertilizing the plant with pollen from a second parent plant, and harvesting seed from the plant, wherein the seed is hybrid maize seed produced by the cross of event MON 87427 plants with a second parent plant. The invention also provides a method of producing hybrid maize seed, wherein the effective dose of glyphosate herbicide is from about 0.1 pound to about 4 pounds per acre. The invention also provides a method of producing hybrid maize seed, further including planting a second parent plant seed in the area and growing a maize plant from the second parent plant. The invention also provides a method of producing hybrid maize seed, wherein the second parent plant is glyphosate tolerant.”

The Supreme Court in DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980) 447 U.S. 303 opened the door for patenting micro-organisms and held that Title 35 U.S.C. 101 provides for the issuance of a patent to a person who invents or discovers “any” new and useful “manufacture” or “composition of matter.”

The court did not analyze the far reaching potential impact of its decision. It is common knowledge that micro-organisms and seeds evolve and spread based on transgenic events especially if they contain a promiscuous promoter.

What has occurred in the case of GMO seeds is that transgenic seeds have been found on land where those seeds have not been planted due to the very nature of seeds to repopulate themselves and may also transmit their novel traits to wild relatives or that novel traits may contaminate other related crop species. This is of particular
concern for crops where seed is saved, because seed formed by cross-pollination from varieties carrying novel genes can lead to populations where the novel gene becomes established. In essence a farmer would not even have to save the seeds, (a common practice amongst farmers) as seeds disperse and spread naturally. By using ’s arguments a farmer is going to be held liable for a plant that spreads its progeny to a neighboring field or farm that does not have a license to grow GM crops. It should be noted that has not sold terminator seeds, which would not have the capability of reproducing, but specifically sell seeds, that if transformed into crops have the capability of spreading their seeds via dispersal mechanism.

A recent British survey of the literature summarizes the nature of pollen dispersal by 5 crops and the risk of cross-pollination with wild or cultivated relatives.

“Oil seed rape (canola) presents a high risk for cross-pollination between source and recipient fields. It is inter-fertile with a number of wild relatives found in the UK and introgression of transgenes seems likely. Pollen dispersal has been recorded at up to 4km by insects (some 20 fold higher than the recommended isolation distances), and to 3km by the air flow. Notable potential exists for cross-pollination with feral populations which are common in the UK, giving rise to well distributed further sources of possible contamination.”

“Sugar beet presents a medium to high risk for cross pollination both with other stands and with wild relatives. Sugar beet crops are biennial and do not normally flower within the harvesting regime, although some ‘bolters’ will flower giving the potential for limited gene flow from the beet crop. In areas producing sugar beet seed flowering is a necessity and here the risk of cross pollination increases accordingly. The pollen produced can be spread extensively on the airflow (significant quantities have been recorded at distances up to 800m) and by insects.”

“Maize presents a medium to high level of risk for cross pollination with other maize crops as the pollen can spread on the airflow. Pollen distribution, as determined by outcrossing between different maize varieties, has been recorded at up to 800m. Maize also presents a medium to high risk for the inclusion of pollen into honey. However, the crop is not interfertile with any UK wild or crop relatives. The percentage of cross breeding with other maize crops in the vicinity will depend on factors such as separation distance, local barriers to pollen movement, such as woods and hedges, local climate and topography.”

“Wheat and potato can be described as low risk for contamination from genetically modified varieties. Wheat has limited potential for outcrossing even with proximal plants and is not inter-fertile with wild or crop relatives in the UK. Potato is a tuber crop, that is also planted as a seed tuber. There is little potential for the introgression of transgenes into the harvested potato tuber and the species is not inter-fertile with any UK wild or crop relatives.”

Much published work relies on small field trials (including GM trials). Evidence indicates that the extent of gene flow between GM and non-GM fields, and between GM and feral populations depends mainly on the scale of pollen release and dispersal, and on the distances between source and recipient populations. The potential impact (including cross pollination and inclusion in honey) of pollen from GM crops increases notably with the size and number of fields planted.

In vs Bowman council for Bowman argued the exhaustion doctrine. The exhaustion doctrine, also referred to as the first sale doctrine, is a common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after an authorized sale. Under the doctrine, once an unrestricted, authorized sale of a patented article occurs, the patent holder’s exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law. In this case does not sell terminator seeds although it has the technological ability to develop these seeds.

A farmer cannot control the natural tendency of a plant to grow, and disperse its seeds and to cross contaminate naturally occurring plants with the novel that has been patented.

Source

Treu, R. and J. Emberlin. 2000. Pollen dispersal in the crops maize, oil seed rape, potatoes, sugarbeet and wheat – evidence from publications. Soil Association, 40-56 Victoria Street, Bristol BS1 6BY, UK. www.soilassociation.org)

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-796.pdf

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