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Tossed Out

Supreme Court seed case could change farming landscape

The Supreme Court heard testimony in the Bowman v. Monsanto Co. case Feb. 19. (lreed76/Flickr)
The Supreme Court heard testimony in the Bowman v. Monsanto Co. case Feb. 19. (lreed76/Flickr)

An Indiana farmer’s plan to save money on seed could end up altering the landscape for intellectual property rights on biotechnology.

75-year-old Vernon Bowman was at the U.S. Supreme Court today in his dispute with Monsanto, the ag biotech giant that developed genetically modified RoundUp Ready crops which are impervious to RoundUp herbicide.

Bowman farms near the small town of Sandborn in southern Indiana. He grows two soybean crops each year. To save money on his second, riskier bean crop he began buying commodity soybeans from a local grain elevator and planting those beans as seed. Since nearly all the beans grown in his area are RoundUp Ready, Bowman’s crop from the second-generation seed also carries the RoundUp Ready gene.

Monsanto claims Bowman took advantage of their patented technology without paying for it. The case has worked its way through the lower court system, as NPR's Dan Charles reported:

     Bowman told his neighbors what he was doing. It turned out that Monsanto did, in fact, care.

     "He wanted to use our technology without paying for it," says David Snively, Monsanto's general counsel.

     Monsanto took Bowman to court, and Bowman was ordered to pay Monsanto $84,000 for infringing the company's patent.

Now, Bowman and Monsanto are pleading their case to the nation's highest court.

Dan Ravicher of the Public Patent Foundation, which advocates for more limits on patent rights, said any seed Bowman used came from farmers who had already paid Monsanto for its technology.

“Notice Vernon Bowman in this case isn’t arguing Monsanto isn’t entitled to a pound of flesh,” Ravicher said. “He’s just arguing they’re not entitled to two pounds of flesh for the patent. That’s what the Supreme Court has upheld.”

Ravicher said it’s called it the “doctrine of exhaustion.”

“So if I buy a car from my local Ford dealer and Ford has a patent on the steering and I sell my car to someone else a few years from now, Ford can’t go sue that person for patent infringement for using the steering wheel,” Ravicher said. “They sold it to me. That exhausted all their patent rights.”

Erika Eckley of Iowa State’s Center for Agricultural Law and Taxation said the court will be asking attorneys from both sides whether that doctrine applies when the technology is able to self-replicate.

“Does (patent protection) just go for that original sale of the seed or does it extend to all of the grain and how you use the grain afterwards? So the Supreme Court needs to determine exactly when patent rights would expire for technology that can continue to reproduce itself,” Eckley said.

As we've been reporting in our Science of the Seed series, genetically modified seed is widely used in the ag industry, so this case will have far-reaching effects. 

Monsanto supporters in the case point out that biotech companies make multi-million dollar investments in technologies with the understanding that patent protections will allow for a big payoff later on. They say if patent rights are limited it will have a chilling effect on innovation.

Ravicher and others who side with Bowman believe giving patent rights a longer reach would stimy competition in an industry already dominated by a handful of major players.

The Supreme Court is expected to decide on the case by the end of its term in June and farmers all over the country will be watching.