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Patents: Part of Fierce Battle Over Genetic Engineering
By SABRA CHARTRAND
AFTER agreeing last month to hear a dispute between two corn-seed companies
struggling for economic advantage in the lucrative market for genetically
engineered plants, the United States Supreme Court is preparing to settle
whether such seeds should be awarded the kinds of patents that usually
cover mechanical, electrical or chemical inventions.
Customarily, the court has supported a broad interpretation of federal
patent law, but with key exceptions for inventions based on mathematical
algorithms and products of nature. Under the current law, just about anything
else is eligible for a patent if it meets invention requirements.
But last year, the Supreme Court issued a ruling that shaved away at the
exception for math algorithms, and some say that the court's willingness
to hear the corn-seed case may indicate that it wants to take another
look at the exclusion for products of nature.
That idea gained force from the court's having agreed to hear the case
even though two lower courts had ruled that nothing in current law makes
the kind of corn-seed inventions in question ineligible for what are known
as utility patents.
The Supreme Court's consideration of the matter is likely to focus attention
on the role of patents in what has become a fierce, often international
political battle over scientific, environmental and health issues raised
by genetically engineered crops.
The fight centers on the efforts of one company to protect 17 corn-seed
patents that it says another company infringed by making and selling identical
seeds. The company with the patents is Pioneer Hi-Bred International,
a DuPont subsidiary and the world's largest producer of seed corn. When
Pioneer sued J.E.M. AG Supply for infringing its patents, J.E.M. countersued,
arguing that the patents should not have been awarded in the
first place.
At the heart of that argument is the question the Supreme Court will take
up: Are plants created from seeds eligible for utility patents?
The two lower courts heard the case in 1998 and 2000, and said yes. For
utility patents, federal law now says that any "new and useful process,
machine, manufacture or composition of matter, or any new and useful improvement
thereof may obtain a patent."
In 1985, the Patent and Trademark Office declared that the law covered
plants created from seeds. Thousands of plants and seeds have since won
utility patents.
"I didn't expect the Supreme Court to take this case," said
Jeff Craft, a Los Angeles intellectual property lawyer who specializes
in biochemistry and life sciences. "The law is pretty clear, it's
very broad, and I'd be surprised if the Supreme Court wanted to send a
signal that they're cutting back on that."
On the contrary, he said, the court seems interested in reinforcing the
broad scope of patent law by removing some of the limits set on math algorithms
and natural henomena.
"This may be another step in reinforcing the breadth of the patent
law," Mr. Craft said. "That's the way the case proceeded in
the lower courts with the seeds. The lower courts followed the signal
set on broad interpretation."
J.E.M. has argued that the utility category was not intended to include
plants, since there are other regulations that govern plant inventions.
The first, the Plant Patent Act of 1930, created a specific "plant
patent" category, at a time long before genetic engineering technology,
for plants reproduced asexually — that is, from means other than
seeds. Plant patents cover plant mutations, hybrids or cultivars that
might come from grafting, budding, layering or rooting techniques.
J.E.M. says another statute, the Plant Variety Protection Act of 1970,
gives legal status to plants created from engineered seeds. It can endow
legal status on sexually reproduced plants, but it does so outside the
patent system. Inventors are awarded a certificate from the Department
of Agriculture, instead. Its protection is less broad than that of a patent,
and it carries exceptions to infringement that do not exist with patents.
J.E.M. argues that Congress meant those two laws to be the only way to
turn a plant invention into protected intellectual property. But Pioneer
Hi-Bred — as well as the Justice Department, the Patent and Trademark
Office and the lower courts — disagree. Now it is up to the Supreme
Court.
While the fight reflects pieces of the growing controversy over genetically
engineered organisms in farming and the food chain, the companies involved
have not waged it to establish any doctrine on whether such seeds should
be accepted.
Rather, it is another in the increasingly common, entrenched fights over
the value of patents in a high-technology economy. Genetically engineered
seeds are a critical part of business strategy for the handful of companies
that dominate the American crop-seed industry.
Foreign sales of American corn and corn products exceed $1 billion a year.
And any company that can lay exclusive claim to those products with patents
stands to collect an increasing share of that revenue. That is why J.E.M.
Supply and Pioneer Hi-Bred have pursued their fight to the Supreme Court.
Genetically engineered seeds are those that have been doctored with genes
from other organisms so they have desirable new characteristics —
like generating their own pesticides or fighting off weeds. Genetic engineering
involves breaking the DNA barrier to directly transfer plant and animal
genetic material. Genes from human, animal, plant, bacteria, virus or
other organisms can be inserted into another species. Specialists call
the result a transgenic plant or animal.
But concern over such plants' impact on soil, pests, beneficial insects
and people who eat the ingredients grown from them has alarmed some environmentalists
and consumer groups, particularly in Western Europe. Some research has
shown that seed toxins can leach into soils. Other studies contend that
pollen from engineered corn can kill monarch butterfly larvae.
Such opponents say that no one understands the long-term effects of these
genetic manipulations. Supporters argue that seeds with antibacteria genes
will reduce the need for insecticide use because they can be programmed
to kill specific pests or weeds.
In spite of that controversy, Mr. Craft said he did not expect the Supreme
Court to narrow the scope of utility patents.
"The economy has been robust, with rewards coming because of these
technological advances, and that is especially primed to take off in the
biotechnology area," he said. "I can't imagine the Supreme Court
knocking the legs out from under that industry."
Copyright 2001 The New York Times Company
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