It Ain't Necessarily So Down on the Farm: Not All Farmers Agree with Farmer Bowman in Bowman v. Monsanto

by McDonnell Boehnen Hulbert & Berghoff LLP

American Soybean Association (ASA)The "conventional wisdom" surrounding the Bowman v. Monsanto case now before the Supreme Court on certiorari is that it is "David v. Goliath," the salt-of-the-earth farmer versus the corporate monolith, and an example of the traditional commoditization of American values by purveyors of "Frankenfood" looking merely to maximize shareholder profit.  So it may come as a shock (to some) that a group of farmers and farmers' organizations have filed a brief in support of Monsanto.  These include the American Soybean Association, Illinois Soybean Association, Indiana Soybean Alliance, Iowa Soybean Association, Kansas Soybean Association, Kentucky Soybean Association, Michigan Soybean Association, Minnesota Soybean Growers Association, Mississippi Soybean Association, Missouri Soybean Association, Nebraska Soybean Association, North Dakota Soybean Growers Association, Ohio Soybean Association, Tennessee Soybean Association, Virginia Soybean Association, Wisconsin Soybean Association, National Corn Growers Association, National Association of Wheat Growers, American Sugarbeet Growers Association, and Growers For Biotechnology.  Maybe these farmers' groups know something other than what "everybody knows."

The groups' bona fides are set forth in the Statement of Interest portion of the brief:

American Soybean Association (ASA) is the national trade association representing U.S. soybean farmers on domestic and international issues of importance to the soybean industry.  ASA's advocacy and representational efforts are made possible through the voluntary membership of approximately 22,000 farmers in 31 states.  ASA represents the interests of 280,000 American soybean farms.

(emphasis added).

The other soybean groups are aligned and support the ASA's position, not only on this brief but also in support of biotechnology in agriculture.  The other food grower groups (National Corn Growers Association, National Association of Wheat Growers, American Sugarbeet Growers Association, and the Growers for Biotechnology) represent their respective food growers.

Their brief uniquely reviews the history of soybean production in America and itself states uncomfortable facts and inconvenient truths about how soybeans are actually produced and the role of agricultural biotechnology in food production.

The brief identifies weeds (not patents) as "the most significant economic challenge to global food production" and that "[i]mprovements in weed management are critical to increasing crop yields."  Amici pierce the canard that biotechnology as applied to agriculture is unnecessary or deleterious, noting that "[a]lthough soybeans and other crops have been cultivated for centuries, advances in plant genetics were historically stifled by a lack of incentives to invest in new technologies and breeding techniques."  In contrast (according to the brief), "enormous progress" has been made since passage of the Plant Variety Protection Act in 1970 and "[g]enetic innovation in Soybeans" increased "like Jack's magical beanstalk" (i.e., exponentially) after the Supreme Court's decision in Diamond v. Chakrabarty.  This "prolific record in developing new crop varieties depends on patent protection, amici contend, because without it "seed and biotechnology companies would not have undertaken the expensive and time-consuming research necessary to improve existing plant technology."  These assertions are supported by facts, including that:

Since 1980, total domestic soybean production has increased 96% and yields per acre have increased 55%.  Soybean production has also become more environmentally friendly.  On a per bushel basis, the land needed to produce a bushel of soybeans declined by 35%, soil erosion decreased 66%, irrigation water applied declined by 42%, fuel consumption decreased 42%, and greenhouse gas emissions declined by 41%.

For at least these reasons, these amici contend that "[u]pholding the [Federal Circuit's] decision below will ensure that technological innovation in crop breeding and genetic traits continues unhindered, thereby leading to the development of more productive, manageable, and environmentally-sustainable varieties" while "permitting unrestricted replication of soybean biotechnology will have a wide variety of harmful effects on Amici, other farmers, and society as a whole."

MonsantoThe brief then provides some historical context.  First, though, some statistics:  soybeans are grown on more than 280,000 farms encompassing 77 million acres in 31 states (it is the "second most-planted field crop" in the country), with sales of $37 billion (18% of agricultural sales).  In addition to benefits of soybean sales in the U.S., soybean production is a major export crop, amounting to $21.5 billion (18% of all agricultural exports).  The effects of Monsanto's soybeans on the soybean economy is illustrated in the brief by noting that soybean exports increased from 882 million to 1.3 billion bushels since 1996 (when Roundup Ready® seeds were first introduced).

The brief follows these statistics from today with a brief history of soybean cultivation and attempted improvements before and after Monsanto developed its Roundup Ready® seeds.  Early efforts were undertaken by the U.S. government, starting (paradoxically) with the Patent Office, which distributed seeds to U.S. farmers.  These "free seed" programs eventually came under the auspices of the U.S. Department of Agriculture and lasted until 1934.  One consequence of this government largess, according to amici, was that "[e]arly seed breeders had little incentive to make costly investments in developing more productive plants because the free seed program crowded private breeders from the marketplace."  These disincentives were exacerbated by the lack of patent protection, say amici, due in part to the ability of farmers from saving seed for replanting.  As a result, the brief cites to "little progress" being made to increase crop yields.

Fortuitously, the exit of the government from seed distribution was accompanied by the development of hybrid corn, which "substantial[ly] increase[d] yields" and coincidentally investment was not impeded because hybrid corn could not be replanted.  While commercial development of hybrid corn thus did not depend on patent protection the same is not true for "self-pollinating" crops such as wheat and soybeans (and were not capable of protection using alternative forms of intellectual property protection like trade secret).  And although the PVPA afforded some level of protection for plant breeders, exceptions that permitted seed saving the provided "soybean breeders [with] little incentive to invest resources in developing new varieties."

The combination of the Court's Chakrabarty decision in 1980 and J.E.M. Ag Supply v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 131-32 (2001), provided these much-needed incentives.  "Breeders responded vigorously to these new assurances of intellectual property protection," say amici, supporting this assertion with the following statistics.  Agricultural genetic research spending increased from $146 million in 1979 to $305 million in 1982, by 1994 had risen to $634 million, and by 2010 amounted to $2 billion.  The focus of most of this research has been on "seed and genetic trait development" and intellectual property protection (both under the PVPA and the Patent Act) "provided incentives for private seed developers and genetic researchers to create innovative and highly productive crop varieties and genetic traits."  Publically funded research, conversely, "leveled off in the 1970s and began to decrease by the mid-1990s."

Roundup Ready SoybeansFar from being imposed on unwilling farmers, the brief explains that "[a]lthough Roundup Ready® seed is more expensive than conventional seed, soybean farmers readily adopted glyphosate-resistant technology because it simplified weed management" (recall that amici asserted earlier in their brief that weed management poses the greatest obstacle to successfully increasing crop yields).  The statistics again bear out these statements:  two years after Monsanto introduced their seed, 38% of farmers had adopted it, and this percentage rose to 54% by 2000 and to 93% by 2012.  These statistics illustrate not that farmers did not want to plant Roundup Ready® seed but precisely the opposite:  Monsanto's seed provided clear advantages that justified their increased cost.

Now is not the time for this trend to be inhibited by reducing patent protection for agricultural biotechnology, amici argue.  While these improvements have been impressive, genetic engineering of crop plants is "a relatively new phenomenon" and there are other desirable traits (including "saturated fat and trans fat levels, increased Omega-3 levels, improved yields, and genetic resistance to insects and pervasive diseases) now being developed (by companies like Bayer, Pioneer, Dow, and Syngenta in addition to Monsanto).  The brief also notes that soybeans are "hardly the only crop benefitting from biotechnology research," mentioning several crop plants where genetic variants with traits including "resistance to drought, stress, and a wider spectrum of herbicides, with a higher nutritional content, and which more efficiently utilize nitrogen fertilizer" are in development.  Accordingly:

There can be no doubt that if intellectual property protections remain in place, biotechnology will continue to play a substantial role in crop improvement.  These advances are largely premised upon the continuation of private research conducted by seed breeders.  Absent utility patent protection, little incentive will exist for biotechnology companies to conduct research.

As in other briefs, the application of biotechnology to food crops also promotes "environmental sustainability," the brief asserts.  Lest there be any doubt, these amici remind the Court that "[s]ustainability is not merely a buzzword that receives lip service from the agricultural community" but is a necessity to enable demand for food to be met currently while "ensuring that food producers [will be able to] meet future food demands."  Between increased global population and decreased availability of arable land, "[f]eeding a growing world with dwindling resources requires the adoption of a comprehensive approach to ensure this daunting challenge can be met."  Conventional methods of food production not only cannot meet these needs but also involve other practices (such as "multiple passes of primary and secondary tillage" and "the use of a variety of herbicides to control weeds") that have their own environmentally deleterious effects.  The introduction of Monsanto's Roundup Ready® seed actually reduced excessive tillage practices and thus reduced soil erosion, water pollution caused by pesticide runoff and even greenhouse grass production (because reduced tillage entails reduced use of diesel fuel for tractors).  Finally, the active ingredient in Roundup®, glyphosate, is "'practically non-toxic by ingestion' and noncarcinogenic, making it safer for applicators seed," in contrast to alternative herbicides that "which EPA estimates are 3.4 to 16.8 times more toxic to humans."

This portion of this amicus brief concludes by discussing the "unorthodox practice" of replanting commodity seed.  While the reasons are multiple, the brief mentions protections against the spread of weeds from the commodity seed and regulations preventing grain elevators from certifying that their soybeans can be sold as seed (like the Indiana Seed Law and other "Federal and state laws and regulations").  As a result, imparting the Court's imprimatur to Farmer Bowman's actions and resulting "widespread adoption" of this scheme would "weeds, and place elevators in the untenable position of serving as de facto state inquisitors regarding the intended uses of grain purchased by their customers."

The brief then sets forth its argument for affirmance, these arguments being consistent with other amici and Monsanto in arguing that Farmer Bowman's replanting amounted to unauthorized reconstruction of a patented article and that Monsanto's patent rights were not exhausted with regard to the replanted seed.

The brief ends with the following:

In 1836, the State Department instituted the free seed distribution program to obtain the best seed technology for America's farmers in order to produce food for the nation.  The free seed program was terminated because seed technology was not keeping pace with society's demands.  During 2012, the State Department re-affirmed its support of agricultural biotechnology as a way to produce the food needed by a growing world population.  In order to meet this challenge, "more food will need to be produced in the next 50 years than has been produced during the last 10,000 years combined."  Agricultural biotechnology is a "proven means of building global food stores."  Little incentive exists for innovation unless seed research and development is afforded intellectual property protection.  Soybean, corn, wheat and sugar beet farmers can help achieve these goals, but will require access to continued improvements in seed technology.

Amici provide a unique perspective based on the experience of real farmers and their organizations concerned with the future of American agriculture.  With luck, the Supreme Court will be listening.

For additional information regarding this topic, please see:

• "BayhDol25 Files Amicus Brief in Bowman v. Monsanto," January 30, 2013
• "Government Sticks to Its Guns in Bowman v. Monsanto Amicus Brief," January 28, 2013
• "IPO Files Amicus Brief in Support of Respondents in Bowman v. Monsanto," January 24, 2013


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McDonnell Boehnen Hulbert & Berghoff LLP

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