[author: Aaron Kase]
A Supreme Court case over a lawsuit brought by agribusiness giant Monsanto against a farmer for the use of patented seeds could have deep intellectual property ramifications for the nation’s burgeoning biotechnology sector. At question is whether the patent Monsanto holds over their “Roundup Ready” soy seeds extends to the self-replicated progeny of those seeds. The high court will hear arguments in Bowman v. Monsanto sometime during the current term.
Normally, purchasers of Monsanto’s famous soy seeds, which are genetically modified to withstand Roundup herbicide to make it easier for farmers to control weeds in their fields, sign a contract that they will not save any of the beans they produce for planting. Instead, farmers have to buy a whole new crop to plant each year from the vendor.
That’s exactly what Indiana farmer Vernon Bowman did since he began using Roundup Ready soy in 1999 — for his first crop of soy each year. However, Bowman also grew a second crop on his 299 acres after he harvested the first, and rather than shelling out the cash for Monsanto seeds he just bought commodity seed from a local grain elevator. For subsequent years, Bowman saved some of the beans he grew using the commodity seed to plant the next year’s second harvest.
The catch was, some 90 percent of soy in the region is Roundup Ready, so the commodity seeds that Bowman purchased already contained the genetically modified beans. That meant he was saving GMO beans and replanting them, which is what Monsanto had attempted to forbid in its licensing agreements. Monsanto sued, and won a $84,456 decision against the farmer in 2009.
Bowman appealed, arguing that farmers such as himself were free to sell their crop to grain elevators, with no restriction on how the elevators could then resell them. At that point, his attorneys asserted, the patent could no longer apply.
A lower court ruled in Monsanto’s favor, leading the 74-year-old farmer to bring his appeal all the way to Washington D.C.
Soy and Beyond
The ruling will affect the nation’s farmers beyond just soy. Monsanto makes other Roundup Ready seeds, including corn, canola cotton and alfalfa.
Jonathan H. Spadt
“Practically, this issue affects every farmer in the country, and the method of planting that farmers such as Mr. Bowman have used for generations,” Bowman’s petition to the court says.
Monsanto argues that their entire business model depends on controlling the patent for any progeny seeds produced, writing in their petition, “Without reasonable license restrictions prohibiting the replanting of second- and later-generation soybeans, Monsanto’s ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the market.”
The Obama administration submitted to the court a petition in support of Monsanto.
Even outside America’s corn and soy fields, there could be repercussions across the biotechnology industry. “This is an extremely important case and not even just for agricultural industry,” says Jonathan H. Spadt, CEO and president RatnerPrestia, an East Coast law firm specializing in intellectual property. The decision, Spadt points out, could impact all kinds of developing technologies that are designed to self-replicate, from organic computers to nanotechnologies to certain genetic treatments.
The real crux of the case is whether patent exhaustion doctrine applies — i.e., whether after the first authorized resale of their product, Monsanto loses control of those seeds. The district court said the doctrine didn’t matter because the fact that the resold seeds growing new GMO seeds in the field created new patent-protected entities. Bowman is hoping the Supreme Court might see differently.
“At that point, the argument is patent exhaustion doctrine attaches,” Spadt explains. “Because it was an authorized legitimate sale, downstream or subsequent use of those seeds is nothing that Monsanto can continue to control.”
The court’s decision will have an enormous impact on patent rights for any self-replicating technology. “How far downstream are you able to control use? That’s a big question,” says the attorney. “We all know that technology develops quicker than the law, but the law has to adapt.”