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Bowman began purchasing Monsanto’s patented seeds in 1999
and, because of the licensing agreement, did not save any of the seed for
future planting. But he also bought so-called “commodity” seed from a local
grain elevator, which acts as a clearinghouse for farmers to buy and sell seed.
The elevator’s seed was contaminated with Monsanto’s
patented seed since more than 90 percent of the soybeans planted in the area
were Roundup Ready crops. Mr. Bowman planted that commodity seed which was
substantially cheaper to purchase. He produced a second, late-season crop,
which is generally more risky and has lower yield.
He also used seeds generated in one late-season harvest to
help produce subsequent late-season crops.
According to Monsanto, the farmer should have known that the
seed was Monsanto’s IP since the seeds were resistant to herbicides.
Monsanto promptly sued the farmer for patent infringement
which case Mr. Bowman (quite correctly) won. The farmer’s lawyer argued that “this
issue affects every farmer in the country and the method of planting that
farmers such as Mr. Bowman have
used for generations.”
Monsanto appealed to the Supreme Court to get its pound of
flesh. Mr. Bowman argued that the Supreme Court should analyze whether the law
allows patent holders to “continue to assert patent rights after an authorized
sale.”
The case therefore centered on the question how far down the
stream of commerce (e.g., the farming cycle) is a company such as Monsanto
allowed to enforce its patents. This is even more poignant since soybeans can easily
self-replicate.
A lower court, an appeals court, the Barack Obama administration and
the Supreme Court all claim that the stream is virtually endless.
The US Supreme Court has for the first time backed patents
for a self-replicating technology. It ruled in favor of Monsanto’s “Roundup
Ready” soybeans, along with its licensing agreement that allows farmers to use
them only once.
This licensing agreement with forbids farmers to resell the
seeds for commercial planting, and those seeds can also not be used for
research, crop breeding or seed production.
The ruling is a clear sign of how patented, genetically
modified organisms get legitimacy. The Supreme Court ruling was unanimous. It
ruled IP rights take precedent over nature – go figure!
In this case, the court ruled against an Indiana soybean
farmer. A lower court ruled in favor of the Monsanto and ordered the farmer to
pay $84,456 in damages and costs to Monsanto in 2009 for infringing its soybean patents.
Justice Elena Kagan explained: “If simple copying were a
protected use, a patent would plummet in value after the first sale of the
first item containing the invention. The undiluted patent monopoly, it might be
said, would extend not for 20 years as the Patent Act promises, but for only
one transaction. And that would result in less
incentive for innovation than Congress wanted.”
According to Kagan, “were the matter otherwise, Monsanto’s
patent would provide scant benefit.” As a fellow lawyer, I can only say: So
what? Not every patent is enforceable, let alone profitable!
The Obama administration instructed the Supreme Court that
its justices should not concern themselves with the eventuality that such rigid
patent protectionism could undermine traditional farming techniques. The
administration went on to point out that Congress “is
better equipped than this court” to handle these issues. Is the
government not blatantly interfering with the justice system? A slippery slope indeed!
Monsanto informed the
Supreme Court that if it would rule in favor of the soybean farmer, it would doom
its business model.
In my lawyer’s opinion, this decision is bad, really bad.
Farmers who buy seed in good faith should be able to use them to use them to
produce food for all of us. Monsanto might have scored a commercial victory,
but on the marketing and PR front – the company lost big time!
