The dispute could have a big impact in a variety of biotech fields
The company claims seeds and offspring cannot be replanted without compensation
Attorney says farmers take all the risk when they plant
Hugh Bowman’s unusual planting methods for his Indiana farm landed him in trouble with the world’s largest seed producer, and it appears the Supreme Court may not see things his way either.
In a patent dispute that could have an enormous impact on a variety of biotech fields, the justices seemed to side with Monsanto in oral arguments on Tuesday.
At issue is whether federal law blocks the reproduction of patented products without compensation to an original inventor.
Things like genetically engineered seeds and live vaccines have been hailed as scientific and industrial breakthroughs, and can often be reproduced easily and cheaply.
Monsanto sued Bowman, 76, for using the company’s “Roundup Ready” soybeans without paying a “technology fee.”
The St. Louis-based company claims under its intellectual property agreement with farmers that the seeds and their offspring cannot be saved and replanted without compensation.
A clear majority of the justices appeared to agree during arguments.
“Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?” asked Chief Justice John Roberts.
“There are certain things that the law prohibits,” added Justice Stephen Breyer. “What it prohibits here is making a copy of the patented invention. And that is what he did.”
Monsanto, according to its petition, dominates the soybean seed market and its “Roundup Ready” variety is used to grow about 90 percent of the nation’s crop for the estimated 275,000 American soybean farmers like Bowman.
Its scientists have perfected a system for injecting genes into seeds that are resistant to the equally popular herbicide Roundup, allowing farmers to plant them with reduced risk of weeds, insects, and disease. These soybeans cost more and farmers must agree not to replant their progeny, forcing them to buy new seeds each year.
The company says it has sued 146 U.S. farmers, including Bowman. Eleven cases have gone to trial and Monsanto won them all.
Bowman grows corn, wheat and soybeans on his property in Sanborn, Indiana, about 100 miles from Indianapolis. He used the patented soybeans for his main spring crop, but went to a local grain elevator and purchased so-called commodity seeds for a riskier, late-season crop.
Such soybeans are typically used for feed livestock and for milling, but not for replanting.
But Bowman figured since Monsanto dominated the market, most of those elevator seeds would be of the genetically modified kind and cheaper. He says there were no restrictions on how he used the mixed-variety commodity seeds, which he did for eight consecutive fall-season crops.
The company found out and sued him six years ago.
In Tuesday’s 70-minute arguments, several justices disputed the claims of Bowman’s lawyer that the so-called “exhaustion” doctrine of patent law limits the control the patent holder can exert after the first authorized sale of the item.
Breyer suggested the farmer had many options of what he could do with the soybeans, including making “turkey tofu” burgers. But he said, “You cannot make copies of a patented invention.”
Justice Sonia Sotomayor explained further.
“You can use the seed, you can plant it, but what you can’t do is use its progeny unless you are licensed to, because its progeny is a new item,” she said.
Mark Walters, Bowman’s attorney, said farmers take all the risks when they plant, while the company can sit back and control how its products are used in perpetuity.
“If exhaustion [first-sale doctrine] is eliminated, rather, for the progeny seed, then you are taking away the ability of people to exchange these goods freely in commerce,” he said. “You have essentially a servitude on these things that are exchanged, and every grain elevator who makes a sale is infringing.”
Food safety experts have raised concerns about the proliferation of genetically engineered food products, saying such production technologies can prove harmful.
But Monsanto, backed by the Obama administration and a range of businesses, says protecting intellectual property is more important than ever, especially in fast-developing technological fields.
“America’s leadership in fostering the incentive to invest in research and development has created the world’s leading innovation economy, with millions of high-technology jobs – not just in our field of agriculture, but in other R&D-intensive fields like medicine, biotechnology, computer science and environmental science,” said David Snively, Monsanto’s general counsel.
A ruling is due in June.
The high court will hear a separate case on whether human genes can be patented.
The case is Bowman v. Monsanto Company (11-796).