Bowman vs. Monsanto: A Major Trial For Agriculture And The Rest Of American Industry
Organic farming advocates and anti-biotech groups earlier this week trotted out Indiana farmer Vernon Bowman as the latest incarnation of a lone man with a slingshot looking to smite an invincible giant — in this case, Monsanto Co.
But when the U.S. Supreme Court hears arguments Tuesday in Bowman vs. Monsanto, justices won’t be hearing a simple case about saving seeds. The high court’s decision could have widespread implications not just for agriculture, but a broad array of technological innovations in other industries, as well as companies that resell patented products.
The Supreme Court will review a federal appeals court decision that ruled Bowman, a 75-year-old farmer from Sandborn, Ind., infringed on Monsanto’s patents when he replanted soybeans Bowman bought from a grain elevator. The case centers on a doctrine known as “patent exhaustion,” which means the buyer of a patented product is free to use that product without restriction. It also limits a patent holder’s ability to hold a monopoly and receive royalty payments in perpetuity.
It’s the second time in three years the Supreme Court has heard a case involving Monsanto and biotech crops. In 2010, justices lifted an injunction on growing Roundup Ready alfalfa, allowing USDA to deregulate the crop.
In a press call this week, Bowman said he wanted a cheap source of seed for double-crop beans following a winter wheat crop. It once was nothing for him to make a trip to the local seed dealer to buy seed at half price.
Once that became unavailable, Bowman said he began buying harvested soybeans from local elevators and using those beans for seed, starting around 1999.
“I saved seed for five or seven years before Monsanto got a hold of me,” he said.
“I was determined that I wouldn’t let them run over me. Farmers have always been allowed to go to the elevator and purchase grain and turn it into seed.”
Yet, Bowman noted he had repeatedly corresponded with Monsanto over a six-year period questioning the legality of Monsanto’s patents once a farmer initially bought patented Roundup Ready seeds. After Monsanto declared that under licensing agreements farmers were not authorized to transfer seeds or resell them, the company began investigating Bowman’s soybean crops. The legal battle began.
Monsanto argues that if Bowman’s arguments prevail, the company would have no way to limit reproduction of Roundup Ready soybeans. Such a decision would risk the prospects of further innovation or commercialization of inventions in seeds or plants. With more than 90% of soybeans containing the Roundup Ready trait, farmers could simply do as Bowman did and buy harvested soybeans from the local grain elevator and almost certainly grow their own herbicide-resistant varieties.
SOFTWARE, MEDICAL AND COMMODITY GROUPS BACK MONSANTO
The Obama administration’s solicitor general had agreed with the appeals court decision in Monsanto’s favor. Yet, the Supreme Court possibly saw a need to address the issue of technologies that are easily copied. Software companies, other biotechnology firms, medical and bioresearch manufacturers and groups that focus on intellectual property rights are backing Monsanto in the case.
“From our standpoint, as you know, 21st century science is really revolutionizing agriculture and medicine, and other things” said Dave Snively, general counsel for Monsanto. “Innovation is really going to be slowed if you can do an end-around and let 18th century doctrine interfere with 21st century technology.”
Snively said the law has been clear that a person cannot make copies of a patented product and resell it. Monsanto equates the situation to the challenges faced by the music industry when people download music and share it for free or resell the songs.
“Our view is the law is very clear that you are not authorized to use the seeds in this manner and you are certainly not authorized to make copies,” Snively said.
The American Soybean Association, National Corn Growers Association, National Wheat Growers Association and American Sugarbeet Growers Association all joined forces on an amicus brief as well, asking the Supreme Court to uphold the lower-court ruling.
“Upholding that decision 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,” the brief from commodity groups stated.
Moreover, the commodity groups added that if Monsanto loses, then farmers, seed sellers and grain buyers would more likely face additional licensing and contractual agreements. Thus far, Monsanto has not changed its licensing agreement with farmers, Snively said.
REMANUFACTURERS BACK BOWMAN
Lining up with Bowman are groups that have either opposed biotechnology or consolidation in the seed industry, including the Center for Food Safety and Save Our Seeds. Those groups produced a report, “Seed Giants v U.S. Farmers,” to argue that Monsanto has used the courts to bully farmers who want to save seeds or use non-biotech seeds.
Other groups are backing Bowman, including the American Antitrust Institute, National Farmers Union and Food & Water Watch.
But a broader set of industries outside of agriculture are also supporting Bowman, including almost any industry that takes something apart, fixes it and resells it, such as the Automotive Aftermarket Industry Association, Automotive Parts Remanufacturers Association and International Imaging Technology Council. Those groups represent thousands of companies that make everything from car parts to farm machinery to inkjet cartridges. They argue an entire aftermarket industry could be jeopardized if the Supreme Court changes the balance on post-sale patent conditions.
“Millions of businesses and consumers use online commerce to resell anything from used parts to a fleet of cars,” the resellers stated in their court brief. “Sellers and purchasers are entitled to know if they have the right to resell, purchase and use what they buy, free from the threat of infringement suits.”
The Supreme Court will hear a couple of cases this session in a similar vein in which someone took either patented or copyrighted material to duplicate or resell.
A ruling on the case would be expected later this spring.
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