By: S.D. Fields (c)copyright 2010 ALL RIGHTS RESERVED

” Thomas should have removed himself from the process because of his past employment by Monsanto. Their need to have certain arguments presented was critical. When I looked at the courts opinion I had to ask myself, “Was Monsanto’s corporate staff present during the language design of the opinion?”

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Imagine the Supreme Court hearing oral arguments about traffic signs. I can read the opinion now, the stop and yield signs are equal in authority. Perhaps they are, but completely different functions occur with each. One stops traffic completely, the other allows traffic to merge smoothly.

Something similar happened when JEM Ag V. Pioneer Hi-Bred Intl. was handed down. Clarence Thomas stated the “PVPA & Patent law were equal in authority”, but he failed to relay his confidence of understanding either while writing the opinion. The dissent gave clear statements of confusion by asking ” Why would Congress pass two laws with nearly identical authority?”

We have all watched cop shows with segments in the courtroom. Do you swear to tell the truth, the whole truth, and nothing but the truth?  In today’s corporate climate, the easiest way to gain any legal authority is to orchestrate a legal argument and exploit the ignorance of the Judicial system. Well, in this case the whole truth was conveniently omitted.

I’ve only known one Federal Judge that has ever had his hands in the dirt checking his planters seed placement depth.  Oral arguments lasting only a few days don’t even begin to educate the Judicial system about the complexities of the seed industry today. The only best way to arrive at an opinion is to live the issue.

Generations of farm families have witnessed the changes evolve. For years our soybean varieties had common names like Williams, Essex, Adams, Union and so on. These were the direct result of intensive University research and development paid for entirely with public investment. Advancements in yield & performance were evident with each passing year.

Congress got the bright idea about cutting spending and creating economic stimulus. Loaning our genetic infrastructure to private industry was designed to provide independent styles of enhancements to our choices. In 1970 Congress passed the Plant Variety Protection Act (PVPA). This was the implied statute honored by all that chose to involve themselves in this emerging industry and remained for nearly three decades. It was implied that plant breeders would borrow the various parent lines from the public; it was also implied that any development would be marketed under their label for a profit. But……it was never implied that they owned them. They only had a right to protect very specific genetic sequences.

The PVPA behaved like a yield sign. Innovation was encouraged to merge. A constant free flow of germ-plasms moved about the entire industry for further enhancement but yielding to established development. If a developer had a performing variety, a competitor could use which ever parent to breed to another for a competitive choice. Even though the right to market under their label was implied, others had the right to toy with this development to validate certain claims or for further enhancements. This included Universities, competitors, or backyard breeders.

During the mid 1990’s soybean varieties were advancing very well in performance & yield. Many companies were developing and marketing very competitive new enhancements with regularity. Farmers were granted an exemption of infringement in the PVPA which not only provided a much needed set of checks and balances, but also protected the heritage of public funding for our future.  “Farmers right to save seed” provided sustainability by forcing new innovation to occur. This also put pressure on the industry to keep prices down to reasonable levels. This exemption was a financial engine that was a source of great wealth in the farm belt.

Along came Monsanto. At the time they only owned one seed company, Asgrow. This was an era when chemical companies were consolidating rapidly. Technology allowed for a chemical resistant event to be piggybacked onto the seed which was used as a vehicle to deliver to the soil. This technology carried a patent. This patent is new “stop sign.” Monsanto claimed they had the right to keep others from making selling or using any portion of this new product and they were out to prove it. Other seed companies didn’t enjoy the innovation until they were let in on the gravy train. What many were not counting on was being regulated by a competitor. I have heard complaints that germ-plasms couldn’t be exchanged without Monsanto knowing who was developing what with whom. Independent research claims couldn’t be validated without permission and were never allowed.

The opinion of JEM Ag V Pioneer Hi-Bred Intl. was an important goal. By duping the public, it seems as though Pioneer had joined Monsanto’s agenda by getting involved on the legal front. Confusing and intimidating terms like “intellectual property” and “biotechnology” were being promoted by the courts. Never did you hear the term “enhancement” again. The case had nothing to do with saving seed nor did it expose the intricate detail of our genetic infrastructure.

The courts certainly didn’t have the ability to comprehend this on their own and nobody was about to tell them. It seems the entire case evolved around one word, “exclusive”. You see in 1970 much of Congress was not that far removed from Agriculture. Never in their wildest imaginations could they have envisioned gene-splicing or a company with a questionable agenda of stealing public property. The fact that Congress never included this word “exclusive” when describing the PVPA role of gem-plasm propagation authority was the reason that this whole mess occurred.

The seed community banded together to call “Round-up Ready” a new breed. The entire genetic sequence of all the present soybean varieties apparently were the same except for the patented gene inserted into the DNA sequence. The opinion written by Thomas stated that “new breeds of plants are patentable subject matter”; same variety, same plant characteristics, only now a surrogate for transport.

For easier comprehension, imagine walking through a Wal-Mart parking lot with a can of patented paint and spraying whatever you wanted to claim ownership of. In this case, a layer of patented enhancement was added to the host infrastructure. This is a clear example of legalized theft.

I couldn’t believe the ruling by our nation’s highest court until I started connecting the dots. I think there was no way could Clarence Thomas have smarted off to JEM’s attorney during oral arguments without being coached prior to the hearing.  His comments seemed consistent with explicit pre-direction. His comments also seemed to set the tone for the other Justices to pretend they knew what was going on.  Thomas should have removed himself from the process because of his past employment by Monsanto. Their need to have certain arguments presented was critical. When I looked at the courts opinion I had to ask myself, “Was Monsanto’s corporate staff present during the language design of the opinion?”

Concerns about genetic erosion or anti-competitive behavior raised by the American Corn Growers & the National Farmers Union was belittled by Thomas who scoffed at the suggestion, he stated those arguments were “immaterial”. Apparently Thomas has a vision that seeds come off an assembly line like trinkets. He seemed hell-bent on creating law from the bench instead of referring this to the elected body.

Why would our nation’s highest court cave to the desires of only a few? Why did they ignore the needs of the people to provide excessive reward for arrogant behavior? So much disconnect will result in the collapse of the public’s desire to be involved in the food chain. Perhaps this is the long term /20 year plan of Monsanto. After all, having fewer farmers solidifies more control over the farm belt.  All Monsanto has to say is “we expected this to happen anyway”.

Using the patenting “stop signs” doesn’t have to be an intrusive as it is. The licensing agreements are the real criminal act. We can’t change the mess created by Thomas, but we can attack the way the anti-competitive and exclusionary behavior has gotten out of control. Using contact licensing has proven to be very harmful to competition. Monsanto and others claim they are doing no wrong but would squall the loudest if the tables were turned. Demanding implied licensing would be a giant step in the right direction. The whole purpose for seed laws is to protect seed developers from each other. The language used in Monsanto’s predatory agreement is clearly aimed at removing any potential ecological liability from them selves, disabling existing competition and establishing an industry of extortion from an unsuspecting customer, other than that, it serves no real purpose.
The best remedy to the mess would be Congressional intervention; an amendment calling for the PVPA to be the “exclusive statute governing “ALL” germ-plasm propagation. If patented technology were piggybacked onto the genetic infrastructure, exhaustion should occur at the original transfer to the farmer. This is the only way for the “yield sign” to be truly effective.

It is very well documented that the unlimited power Monsanto has demonstrated brings out the worst in people. No doubt many of their top officials need to be spending time in the same air space as Bernie Madoff.  Just because a company has the ability to place themselves in strategic locations throughout our federal government doesn’t mean they should be immune from accountability.

I think:

  • Donald Rumsfeld: The Secretary of Defense formerly on the Board of Directors of Monsanto’s Searle pharmaceuticals
  • John Ashcroft: The two congressmen receiving the most donations from Monsanto during the 2000 election were Larry Combest (Chairman of the House Agricultural Committee) and Attorney General John Ashcroft. (Source: Dairy Education Board)
  • Michael Taylor: Monsanto attorney now in the White House as a food czar.
  • Margaret Miller: Monsanto’s scientist, then became an FDA regulator.
  • Ann Veneman, The U.S. Secretary of Agriculture was on the Board of Directors of Calgene Corporation which was purchased by Monsanto.  In 1994, Calgene became the first company to bring genetically-engineered food, the Flavr Savr tomato, to supermarket shelves. Calgene was bought out by Monsanto, the nation’s leading biotech company, in 1997. . . Veneman also served on the International Policy Council on Agriculture, Food and Trade, a group funded by Cargill, Nestle, Kraft, and Archer Daniels Midland.
  • Clarence Thomas: Prior to being the Supreme Court Judge who put GW Bush in office, Clarence Thomas was Monsanto’s lawyer:
  • Tom Vilsack: Bio-tech governor of the year who nearly single-handedly destroyed family farms in Iowa.

These people and many others need to have their actions put under a microscope. Let’s see who benefited the most from their positions within our Federal government. This makes me wonder:  “What is Tom Vilsack doing for Monsanto under this administration? Is he aiding in covering up laws that have been violated?”

Having well placed moles able to identify and exploit key loopholes can be very beneficial to a company’s long term program. I have learned to view Monsanto’s statements as either a lie or a diversion. We should all look the opposite direction they point. The most sincere suggestion I can give is to never, never trust them enough to turn your back.

notes from: mindfully.org

Monsanto’s Legal Team

 

While most farmers are represented by a single attorney in the courtroom, Monsanto hires a number of law firms for almost every suit it files. For cases filed outside the Eastern District of Missouri, Monsanto hires an attorney from the farmer’s local area to serve as local counsel. The three firms that appear most frequently on the complaints against farmers are Thompson Coburn, LLP, Husch & Eppenberger, LLC, and Frilot Partridge Kohnke & Clements. Specific attorneys most often include Joel E. Cape, Miles P. Clements and Wayne K. McNeil from Frilot Partridge, and Joseph C. Orlet from both Thompson Coburn and Husch & Eppenberger.

In its prosecution of farmers, Monsanto has also turned to multibillion dollar, “universally recognized” law firms. In Mitchell Scruggs’ case—one of the only cases where there are almost as many defense attorneys on record as attorneys for Monsanto—Monsanto retained the law firm of Arnold & Porter.1 Litigation experience with biotechnology patent cases is an exceptional strength among the 700 lawyers on this firm’s staff. Homan McFarling and Kem Ralph are two farmers who have fought back hard against Monsanto, and when both of their cases went on appeal to the Federal Circuit, Monsanto retained former U.S. Solicitor General Seth P. Waxman of Wilmer, Cutler & Pickering, to prosecute the two farmers.2

1 Monsanto Co. v. Scruggs, 249 F. Supp. 2d 746, 750 (N.D. Miss. 2001).

2 Monsanto Co. v. McFarling, 302 F.3d 1291, 198-1299 (Fed. Cir. 2002), Oct. 16, 2002

 ” The world is a dangerous place, not because of those that do evil, but because of those that look on and do nothing”

       Albert Einstein

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