Court ruling leaves new wheat to science
BakingBusiness.com, July 9, 2013
by Morton Sosland

A favorite metaphor treating a quiver full of arrows as a sign of strength was brought to mind by the Supreme Court decision last month upholding Monsanto Co. in defending its rights under a patent on Roundup Ready soybeans. From the viewpoint of this publication, the unanimous decision became an arrow in support of genetic modification of wheat, a crop similar to soybeans in one striking fashion, that both are grown from seeds easily reproducible in planting. This characteristic of wheat means farmers often use seed from one year’s crop to plant next year. It is a practice that has prompted questioning the likely economic benefits of modifying wheat to the point that it could be patented when farmers might be able to grow a crop without buying the patented seed.

Monsanto and its soybeans have shown that this concern may be addressed and dealt with. The Supreme Court ruling means that approach is backed judicially. By developing a soybean with superior yield when the Roundup herbicide is applied without damaging the plants, the company has a patentable variety irresistible to farmers seeking to maximize crop returns. It was a farmer who sought to grow a crop by planting beans purchased from a grain elevator, rather than planting only purchased Monsanto seed, that brought the court case. All nine justices supported the decision in a case that the company had previously won in district court and on appeal.

The Supreme Court decision won plaudits from business leaders largely because it left no doubt about patent protection, at least so far as crop seeds are concerned. The decision reflects the finding that “if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention.” That possibility is contrasted with the 20 years of protection offered by the Patent Act, threatening “less incentive for innovation than Congress wanted.” Along similar lines, the court held that the patent exhaustion doctrine “leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item.” It was this doctrine that the soybean farmer filing the suit had relied upon to defend planting regular soybeans.

Even with such a victory, the wheat industry appreciates that moving forward on bioengineered wheat takes more than a unanimous Supreme Court. Monsanto as well as others in the commercial seed business are working to find a wheat offering both yield and quality gains deemed essential to presenting this opportunity to growers. Similarly understood is that wheat, as a crop unlike both soybeans and corn where genetic modification dominates, requires advantages different from the others. It will not be enough to come up with a wheat that has superior yield even though concerns are increasing about stagnation in average wheat yields as compared with the increases in corn and soybeans. This is a major factor behind the loss of wheat acreage in recent years, but boosting yields is not going to be sufficient to carry the day for wheat.

Overarching in concern about bioengineered wheat is that it is a concept that makes more than a few people in and out of the industry terribly uncomfortable. Modifying wheat by scientific research, which has been done with different skill sets over many centuries, has been met with a high level of antagonism in the present environment where food and health are tightly intertwined. Coming up with a patented bioengineered wheat absent a program for gaining acceptance among consumers could mean a chaotic situation where no one benefits. Agreement is expanding that boosting wheat production is absolutely necessary to assure a food supply sufficient for the global population considered likely by the middle of this century. It is through the careful application of science that wheat of the yield and quality required, to produce enough and to win acceptance, is going to be achieved.