Feb. 13, 2016 SIGN IN | REGISTER

Farmer's Use of Modified Seeds Reaches Supreme Court

Courtesy Mark P. Walters
Bowman is arguing that Monsanto lost the right to keep him from planting Roundup Ready soybean seeds he bought from a grain elevator; the federal district and appeals courts disagreed. The Supreme Court will hear arguments from both sides this month.

There will be no discussion of “Frankenfoods,” the pejorative term opponents of genetically modified crops often use to describe products by Monsanto, DuPont and Syngenta. Nor will the case turn on genetically modified organism proponents’ arguments about the benefits to food production of having herbicide resistant food crops.

The case revolves around federal patent law and what limits apply. Bowman argues that he followed the restrictions he agreed to in the technology licensing agreements he signed when he bought Roundup Ready seeds when he planted his first soybean crop each season. Under those agreements, Bowman says, the patent and contract restrictions on harvesting seed for planting were in force.

But he draws the line at bulk commodity seeds — a grab bag of soybean seeds — he bought more cheaply from a local grain elevator for several years for late-season plantings. Bowman says he chose the commodity seeds because late-season planting is a greater gamble because of unpredictable weather and he wanted to limit his investment. When he harvested and sold crops, he saved some of the seed for subsequent planting.

The elevator did not segregate Monsanto seeds and Bowman ended up with Roundup Ready seeds. In court documents, he said he had expected the bag to include such seeds and had raised seedlings whose resistance he tested by spraying with weed killer. Over nine years, he culled and perfected the quality of seeds he used for the late-season plantings.

Bowman argues that Monsanto’s patent right was exhausted with the seed sale to the farmers who sold their seed to the grain elevator.

Walters dismissed claims that a victory by his client would broadly endanger patent protections for self-replicating technologies, calling them “completely exaggerated.”

“No other self-replicating technology is distributed like seeds,” he said. “There is no other self-replicating technology that is going to be dumped into a grain elevator mixed with everybody else’s production and then available for sale to the public.”

He said most self-replicating technologies are distributed under tight restrictions.

Walters said there are strong parallels between Bowman’s case and one involving a computer company that prevailed in a 2008 Supreme Court decision. The court found that the company did not violate a chip maker’s patent rights when it bought the company’s product from a third party and combined them with other components to make computers. The court said the patent holder’s restrictions on the computer chip use ended with the sale.

“Monsanto is saying the [rights to] subsequent generations are not sold so you can’t exhaust them. We’re saying like the method is embodied in the computer chip, the subsequent generations are embodied in that first generation. When you sell that first generation, you’re not only selling that generation but the ability to use that seed to make other generations,” Walters said.

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