The small farmer and Goliath Monsanto

27 February 2013 by Rosalind English

Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard  opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products.  The dispute in  Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.

The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology.  This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof.  As The Atlantic summarises it:

 It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds.

Background

Mr Bowman bought Roundup Ready herbicide resistant seeds from Monsanto. These genetically modified seeds are tremendously popular and useful because they produce plants which are immune to the potent weedkiller glyphosate. To protect their intellectual property in the product, Monsanto requires farmers to sign a standard agreement not to save the seeds, which Bowman duly did – he didn’t replant them. Instead, after harvesting the first crop of beans, he took the crop to the grain elevator where it was mixed in with soybean crops from other farmers. For his second crop, he bought cheaper ‘commodity’ seeds from the grain elevator.  These seeds were also mostly Roundup Ready.  According to the court record, Bowman repeated this activity from 2000 through 2007.

As Mr Bowman told the New York Times:

All through history we have always been allowed to go to an elevator and buy commodity grain and plant it.

Sounds fair enough. But Monsanto soon discovered that Bowman was growing more herbicide-resistant soybeans than the quantity of his original purchase of transgenic seeds could generate. The company took patent infringement proceedings, arguing that growing new soybean plants from grain elevator beans did not give the buyer the right to make unlimited copies of the patented item.

The agreement that Bowman had signed with the Monsanto licensee extended only to the seeds that he’d purchased at the time, so, obviously, the commodity seeds he’d bought and planted for his second crop was not within the scope of that agreement. But that wasn’t Monsanto’s grouse; they did not allege infringement of the agreement with respect to Bowman’s first generation seed planting. What they said was, there was an express condition in the agreement that “the progeny of licensed seed never be sold for planting”. They argued, in effect, that Bowman was liable for patent infringement when he planted those commodity seeds because patent protection

is independently applicable to each generation of soybeans…that contains the patented trait

Bowman’s counter to this was that a seed “substantially embodies” all later generation seeds, at least with respect to commodity seeds bought from a grain elevator. This is based on what seems to be the blindingly obvious argument that the only reasonable and intended use of commodity seeds is for replanting them to create new seeds. What else are they there for? Feed, possibly: and this was Monsanto’s point. As the  court record says,

While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material

The company’s patent over its soybeans seeds was not “exhausted” after Bowman planted the seeds the first time. And it was not “exhausted” when he bought and then planted the second-crop seeds from the grain elevator. Instead, the company argued, Bowman’s planting of each new generation of the seeds, from whatever source, constituted a brand new event triggering the initial patent protections.

Mr Bowman maintained for his part that he was not making seeds, he was merely using the seed from the elevator, which was permissible. It just so happened that because of the nature of a seed, using one results in more copies being created. Such a self-replicating process should, Mr. Bowman argued, exhaust the patent.  As expected, he lost both in the County and in the Federal Court, which ruled unanimously in favour of Monsanto, holding even if Monsanto’s rights in the commodity seeds were exhausted, an infringement action could still proceed against the grower:

once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready technology and the next generation of seeds develops, the grower has created a newly infringing article.

It therefore came as something of a surprise to everybody, particularly the biotech industry, that the Supreme Court chose to take this case, with Bowman continuing to argue that it was not he himself that took Monsanto’s genetically-engineered seeds to make a new invention that the company had protected by patent. Instead, he contended, it was “the planted soybean, not [he himself] , that ‘physically connected’ all elements of the claimed invention into an ‘operable whole.”  Monsanto could not, in essence, complain of an act of nature, the germination of a seed placed into the ground. This is not the province of patent law.

The Supreme Court hearing

From the oral arguments in the Supreme Court last Tuesday, it is clear that the Court is vexed by the patent exhaustion doctrine and its application to self-generation technologies. The default position in these cases is that patents must be protected; if they are not, resources for innovation and technology would dry up. As Chief Justice Roberts asked,

Why in the world would anybody spend any money to try and improve the seed if as soon as the sold the first one anybody could grow more and have as many of these seeds as they want?

echoed by Monsanto’s proclamation that a victory for Mr Bowman in this case would eviscerate patent protection in plant technology:

Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.

But Bowman’s submission was that if the Federal Court were correct, farmers could never plant seeds purchased from a grain elevator because no grain elevator is free of patented seeds.

Monsanto’s lawyers would have none of this. The farmer is not forced to plant second-crop seeds that are under patent; he could have bought older, non-GM, off-patent crop varieties at a lower cost for the second crop. The reason why he, and most farmers, do not do this is because they know that  certified “clean” seed with its productive package of genetics guarantees higher yields.

The Supreme Court’s decision is not expected to issue for several months.

Comment

This case has far-reaching implications for the doctrine of patent exhaustion not just on seeds, but other self-replicating such as microorganisms, tissue culture, cell lines and DNA used for research or medical treatment, and some types of nanotechnology. The case will turn on the extent, or limitations of patent law, but it also highlights the confusion at the heart of the  anti-GM movement. “Big Ag” is a problem to be sure and a threat to the planet for many reasons, but genetic engineering is not one of them.  As former Green activist – now apostate – Mark Lynas comments,

One does not fight the corporate misdeeds of the automotive industry, for instance, by demanding that the wheel must be banned (The God Species, Fourth Estate 2012)

Furthermore, like the horse meat scandal, this litigation serves as a timely reminder that the bucolic idyll of “natural” farming has no place in modern agriculture. One Indiana farmer quoted by an opinion piece on the litigation stated

If we wanted to breed our own varieties, I’m sure we could, but I look at it as division of labour. Seed companies are great at coming up with great products, and farmers are great at turning those products into (food and feed).

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