Indiana farmer challenges Monsanto before Supreme Court

By Sarah Gonzalez

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, Feb. 19 - The Supreme Court will hear arguments today from both sides of a patent case involving Monsanto and an Indiana soybean farmer. The case questions the scope of patent protection for self-replicating genetically engineered seeds, but has far-reaching implications for genetically-modified fish, bioengineered medicines and other high-tech research investments.

Vernon Hugh Bowman, a seventy-five year old farmer in Indiana, began purchasing commodity seed from a grain elevator in 1999. Although typically used for feed rations, Bowman planted the seed and found that some of the purchased seeds contained Monsanto's Roundup Ready (RR) trait. He continued to save the soybeans with the patented trait that resists Roundup weed killer.

“I have been buying soybeans from an elevator for planting after wheat,” said Bowman in a 2007 letter to Monsanto, according to the Bowman court brief. “There is no way of knowing what variety I have planted. However, most of the soybeans I have purchased turned out to be resistant to the Roundup related chemicals.

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In the letter, he said the commodity beans he bought turned out to be mostly RR beans as I had hoped,” and that he saved some of these beans for seed.

The main issue the Supreme Court justices face is whether the first authorized sale of the patented product exhausts, or ends, Monsanto's patent rights over the next generations grown from the seed. Bowman lost in a federal district court and on appeal, where the court found Monsanto is entitled to damages for patent infringement. Bowman and his supporters believe the courts in the federal circuit mistakenly ruled in favor of Monsanto, and that legal contracts instead of patent rights should provide sufficient protection for the company's technology.

The National Farmers Union, along with other organizations, stated in an amicus brief that the federal court created an expanded right regarding the patented “self-replicating” soybean seed, which “has foreclosed the ability of the courts to look critically at the reasonableness of Monsanto's restraints on replanting.Bowman's supporters also include Food & Water Watch, Organization for Competitive Markets and the National Family Farm Coalition. The Center for Food Safety and Save Our Seeds also filed an amicus brief in support of Bowman.

However, a support amicus brief for Monsanto filed by several economists states that contract law is not sufficient in cases of self-replicating technology like the varietal soybean seed.

Monsanto's supporters include the American Soybean Association, National Corn Growers Association, National Association of Wheat Growers, American Sugarbeet Growers Association, Growers For Biotechnology, American Seed Trade Association, Biotechnology Industry Organization (BIO), CHS Inc., CropLife International, CropLife America and Pioneer Hi-Bred International.

“The innovator could have a contract remedy only against those to whom it sold seed, that is, the other parties in the contract,” the economists stated. Bowman would not be a part of this contract, since he purchased the seed secondhand from the grain elevator.

However, Bowman's attorneys argue that Monsanto could require grain elevators to form contracts with their buyers that restrict the reproduction of the seed.

According to Bowman, Monsanto should not have the legal authority to restrict the use of the Roundup Ready seed because patent law dictates that the initial authorized sale of a patented item terminates all patent rights to that item.

However, organizations like BIO maintain that patent law forbids unauthorized “making” of a patented product. In Bowman's case, they argue that he continued to “make” the patented soybean when he planted it, due to the self-replicating nature of the varietal seed.

Monsanto maintains in its court brief that the new soybeans grown from its seed were never the subject of a sale authorized by the company and that because Bowman created new seeds from Monsanto's technology, the company's patent rights cannot be exhausted.

In response, the Center for Food Safety and Save Our Seeds maintain that “farming is using seeds,” not constructing or manufacturing them.

But the American Soybean Association says that reversing the lower court's decision would be “tantamount to the endorsement of Bowman's highly unusual fee circumvention scheme.”

The economists supporting Monsanto in the case say that if patent laws are allowed to expire after the first sale, seed and trait innovators will have to charge a price for the first sale that captured the full value of the invention, including research and development costs. Also, the initial investment in a type of seed “would lock farmers into a particular seed for years, stifling competition,” the soybean group said.

BIO added that “to condone uncontrolled reproduction after the first purchase, would not only destroy the value of the patent, but would also make it impossible to commercialize a product at reasonable cost.

In its support for Bowman, the National Farmers Union maintained that allowing contract law to govern post-sale use of seeds would discourage “exploitation of the patent grant” and permit “meaningful judicial review of unduly anticompetitive exploitations.”




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