By developing and inserting a glyphosate- resistant gene into plant DNA, Monsanto Co. has created premium seeds of soybean, canola and cotton able to withstand its Roundup herbicides and similar weed killers.
In the agribusiness world, Monsanto is known as an aggressive enforcer of restrictions on farmers’ use of its patented line of genetically engineered crops. Now the St. Louis-based conglomerate is in a showdown with a southern Indiana farmer that will play out this month in the U.S. Supreme Court.
At issue is Vernon Hugh Bowman’s argument that Monsanto lost the right to keep him from planting Roundup Ready soybean seeds he bought from a grain elevator. The seeds came from soybean growers who had harvested and sold second-generation seed to the elevator, which in turn sold them to Bowman.
It’s an argument Bowman lost in a federal district court and on appeal. They found that Bowman owed the company $84,456 as compensation for patent infringement.
But Bowman, now 75, raised a question in his petition to the Supreme Court for a review that piqued the justices’ interest. They ignored the solicitor general’s advice to reject the case and are set to hear oral arguments Feb. 19.
The Office of the Solicitor General, Biotechnology Industry Organization, Software Alliance and the American Soybean Association, among others, have lined up in support of Monsanto’s argument that a decision for Bowman could undermine patent protections for man-made cell lines, nanotechnology, electronic software development and other self-replicating products.
Bowman has the support of the National Farmers Union, Center for Food Safety, American Antitrust Institute, the Automotive Aftermarket Industry Association and the Public Patent Foundation. The groups say a court decision in favor of Monsanto will give patent holders undue control in the distribution and use of their products. Competition, they argue, will suffer.
Lawyer Mark P. Walters, a Seattle patent attorney who worked his way through law school in a university seed lab, will make the arguments for Bowman. It will be his first appearance before the high court. To fight back, Monsanto has brought out President Bill Clinton’s former solicitor general, Seth P. Waxman.
Test of Patent Law
This is the first time the Supreme Court has reviewed a Monsanto lawsuit against a farmer for alleged violations of company restrictions on using the progeny of patented seeds to produce additional crop. Generally, the cases end when Monsanto wins in the lower courts.
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.
“Just like when you sold the computer chip, you sold not only the chip but the ability to use that chip to practice the method,” Walters said.
Not so, Monsanto’s general counsel David F. Snively says. The company’s patent protections do not end with a sale. The engineered trait, which the company has invested millions of dollars in creating, is carried in harvested seeds and continues to provide resistance to pesticides if planted.
The fact that Bowman got the seed from a grain elevator and not Monsanto or an approved distributor changes nothing, Snively says. The company allows growers who have signed technology agreements to sell their harvest for animal feed or other products. The agreements expressly prohibit the farmers from saving seed from their harvests to produce new crops.
“The patent law in this country individually gives you the right to regulate the sale of an article, the making of an article,” Snively said. “Clearly, the patent law doesn’t authorize an evasion of those patent rights by sourcing the materials from somewhere else.”
He likened it to claiming that a private sale of a computer operating system enables the buyer to make copies for a commercial basis.
Snively said Monsanto imposes what it considers to be reasonable limits on replanting of its patented seeds to keep farmers “from going off and taking the technology as if it is their own and going into business.”
The company believes it will win in the Supreme Court, he said, adding that a loss would affect not only his industry but also research universities and technology companies.
“We’re completely confident that the court is going to sort through this and define intellectual property rights in a way so that all farmers know where everybody stands on this,” he said.