Published on CorpWatch, by Puck Lo, March 26, 2013.
Does Monsanto own all future generations of genetically modified seeds that it sells? The Missouri-based agribusiness giant wants farmers to pay a royalty to plant any seed that descended from a patented original. The legal decision has ramifications for other patented “inventions” that reproduce themselves like strands of DNA.
The U.S. Supreme Court appeared to side with Monsanto in oral arguments heard this past February in a lawsuit that the world’s largest seed company has brought against Vernon Hugh Bowman, a 75 year old farmer in Indiana, who grows corn, soybeans and wheat on a small farm of 600 acres (242 hectares). The impending court decision, which will probably come this June, has sparked alarm among consumer advocates.
“Judges don’t understand agriculture,” says Bill Freese, science policy analyst for the Center for Food Safety, a Washington DC based watchdog group. “The Monsantos of the world have everyone convinced through a massive misinformation campaigns that biotech crops are essential to feed the world, and patents are necessary for biotech crops. So there’s this patina of virtuous innovation when in fact what biotechnology is really used for primarily is to develop pesticide-promoting crops.”
The crop in question is Roundup Ready soybeans, which are genetically-altered to be resistant to glyphosate, the main chemical in Roundup, a pesticide also manufactured by Monsanto.
Bowman first fought back when Monsanto sued him in 2007 for patent infringement. At the time, Bowman was a regular Monsanto customer. Like the 275,000 other U.S. farmers who buy “Roundup Ready” seeds, Bowman bought his seeds from Monsanto and signed a contract stating that he would not save Roundup seeds to replant. He didn’t.
But from 1999 to 2007, in addition to his usual order of Roundup Ready soybeans for seed, Bowman purchased commodity-grade soybeans, called “commodity grain,” from a local grain elevator where farmers like himself sell their crops. Typically, commodity grain is used for animal feed. Bowman, however, decided to use the commodity grain – a mix comprising of many different varieties of soybeans including some Roundup Ready seeds – to plant a second, lower yield soybean harvest later in the season.
Bowman told National Public Radio, a U.S. network … //
… On February 19, Supreme Court justices heard both sides of the case.
“Without the ability to limit reproduction of soybeans containing this patented trait, Monsanto could not have commercialized its invention, and never would have produced what is, by now, the most popular agricultural technology in America,” Monsanto’s lawyer and former U.S. solicitor general, Seth P. Waxman, told the court.
Waxman was allowed to talk uninterrupted at length, “which is usually a sign of impending victory,” the New York Times reported.
In contrast, the justices fired a volley of skeptical questions at Bowman’s attorney, Mark P. Walters. When Walters argued that Monsanto’s patent didn’t apply to subsequent generations of seeds after the initial sale, Antonin Scalia, another judge, interrupted him.
“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?” Scalia asked.
Later, Walters argued that Bowman was “making use” of the commodity grain that he bought on the open market when he planted it, not making a copy of an original Monsanto seed. He was rebuked by Stephen Breyer, another of the judges.
“You can feed it to animals, you can feed it to your family, make tofu turkeys,” Breyer interjected. “But… you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”
“If the concept is the sale of a parent plant exhausts the patentholder’s rights… we would have to go all the way back to the very first Roundup Ready plant that was created,” said Melissa Arbus Sherry, the lawyer representing the Obama administration. “Every single Roundup Ready seed in existence today is the progeny of that one parent plant and… that would eviscerate patent protections. There would be no incentive to invest, not just in Roundup Ready soybeans or not even agricultural technology.”
Walters believes there is still a possibility that the Supreme Court could reverse the decision or send the case back to the lower courts for retrial. He said three of the justices appeared to sympathize with the idea that a farmer ought to be able to sell, plant or grow new seeds from ones he buys on the open market.
“There are many interests: biotech, seed companies, large and small farmers. They’re not aligned,” Walters told CorpWatch. “Small farmers are not very well organized. They’re not a strong voice in Congress. Right now one company with a particular stake is trying to make a case based on a set of particular facts.”
Both Walters and Freese agree that in today’s political climate, it would be an uphill battle to pass legislation that would regulate the powerful biotech industry. Last year, Monsanto, other agribusiness and food companies spent more than $45 million to defeat a proposition in California that would have required labels on some genetically modified foods sold at stores.
Meanwhile, Bowman has to drive out of the state of Illinois – to Ohio - in order to find cheap, non-GMO commodity soybeans he can plant without the threat of a patent infringement suit. Every time, he does this, he passes numerous grain elevators, all of which brim with soybeans.
Center for Food Safety;
Farmer’s Supreme Court Challenge Puts Monsanto Patents at Risk;
Seed Giants vs. U.S. Farmers, February 13, 2013;
Plant Variety Protection Act: An Alternative to Patents;
The final decision was written by Justice Clarence Thomas.