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What's At Stake In the Monsanto Dispute Over GM Seed?

Farm Futures blogger Gary Baise takes a look at the key issues

Published on: Feb 20, 2013

Editor's note: This commentary first appeared in Gary Baise's 'Defending Agriculture' blog on October 25, 2012. To read the original post, click here.

On December 20, 2011, Knox County, Ind. farmer Vernon Bowman had his lawyers from New York City and Seattle file a petition requesting the U.S. Supreme Court to hear his case on planting "commodity" soybeans purchased from a local elevator. The soybeans in question were glyphosate tolerant.

Bowman is challenging two lower court decisions and losses regarding his planting of so-called "commodity seeds" to raise a second soybean crop each year. Monsanto believes Bowman is using its patented Roundup Ready seeds purchased from the local elevator. Bowman disagrees.

Farm Futures blogger Gary Baise takes a look at the key issues
Farm Futures blogger Gary Baise takes a look at the key issues

Many articles have been written about the legal dispute between Monsanto and Mr. Bowman. On the surface, the case appears to involve an extremely arcane set of legal issues. See if you can make heads or tails of this language.

Bowman's lawyers advised the Supreme Court that the question in this case is whether patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale.

In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose – namely, for planting. The question presented is: whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale, and (2) by creating an exception to the doctrine of patent exhaustion or self-replicating technologies.

Indeed, you may need to be the Supreme Court to be able to understand what Mr. Bowman's lawyers are trying to raise.

How much control?

The Solicitor General's Office of the U. S. Department of Justice, not known to have a lot of agricultural background, presented the question in a fashion the average person can understand, which is "Whether the authorized sale of one generation of a patented plant seed exhausts a patentee's right to control subsequent generations of that seed."

Pretty simple. Does Monsanto's patented GMO technology travel from the soybean seed in the ground to the soybeans in the pods?  If so, Monsanto's technology travels to the new soybeans created on the stalk or plant stem.

Bowman began purchasing Roundup Ready genetically modified (GMO) soybeans and signed the Monsanto Technology Agreement, starting in 1999. He followed the Technology Agreement which among other items requires anyone using Monsanto gene technologies to use the seed for a commercial crop for a single season - not save any of the crop for replanting and not to use the seed for crop breeding. He followed Monsanto's rules.

But, Mr. Bowman engaged in another practice - growing a second soybean crop presumably on  harvested wheat ground. He did not want to use the more expensive Monsanto GMO soybean seeds for the riskier second crop, so he purchased "commodity seed" from a local grain elevator.

Mr. Bowman claimed Monsanto's Roundup Ready GMO patent did not apply or extend to soybean seed purchased from the elevator because he was planting what he called "second generation" seeds sold to the elevator. Monsanto disagreed.

For soybean producers, the question is not complicated. If you want to plant non-GMO soybeans, such soybeans are available for purchase. Bowman appears to have known that in Indiana, 94% of soybeans planted are GMOs.

Bowman determined, through his own testing, that he could apply glyphosate to his second crop of soybeans, which flourished. Now he does not want to pay Monsanto its technology fee, and he got caught.

Stripping away all the legal arguments, this case is pretty simple. Monsanto has a patent and the soybean seed carries this patent forward in each new seed created by the original seed. In fact, on average, if a producer has at least 30 pods or more per soybean plant, and those pods have 3 beans in each pod, that is approximately 90 beans per plant. Assuming 142,000 soybean plants per acre, (what I planted this year) that is roughly 12 million soybeans to the acre each with Monsanto's technology embedded in it.

Monsanto says every individual patented bean carries its genetic material. Bowman claims that once a patented item, such as a tractor, is sold, the patentees cannot prevent the farmer from using the tractor in any way he chooses. Correct! However, what Bowman does not seem to understand is that if the farmer attempted to reproduce the identical tractor and sell it, he could not do so without infringing upon a lot of patented items.

Bowman knowingly reproduced Monsanto's patented seeds to the tune of millions of times and profited without paying Monsanto for its intellectual property and hard work. Bowman created an advantage for himself by not paying his fair share and that is unfair to all producers who play by the rules. In my opinion, Mr. Bowman should lose the case.

Gary H. Baise is an Illinois farmer and trial attorney specializing in agricultural and environmental issues at the law firm Olsson Frank Weeda Terman Matz PC.

Comments:
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  1. Shirley Turner says:

    Clarence Thomas should excuse himself from deliberation on this case. His point of view could very well be severely biased in favor of Monsanto.

  2. Shirley Turner says:

    Monsanto is the Wal-Mart of farming and has no scruples about absolutely crushing the competition. It, and a few other corporations, want to control the world's food supply, and patenting every seed available is how they plan on doing it. I refer everyone to a book titled "The World According to Monsanto". This company has had 196 +/- patent infringement lawsuits since the late 1990's. They are forced to spend approximately 25% of their budget fighting patent laws! This is perfectly untenable. As long as no one knows what they do, they continue to do it. They want independent farmers, from India to Argentina to the United States, to bend to their indomitable pursuit of profit. Justice and ethical conduct is being denied, and no one seems to be watchi

  3. Willie Knox says:

    Mr Bowman didn't buy the beans as RR seed, he bought them as feed with no assurance they were RR. It would be interesting to know if he sprayed the crop with Roundup and what happened. In this case Monsanto should leave him alone.

  4. anonymous says:

    One of the supreme court justices(C. thomas) worked as a lawyer for Monsanto---how do you think he is going to rule?? It is all about $. Monsanto needs to prove that every bean he bought from the elevator was theirs---not 100% are

  5. Anonymous says:

    Read the transcript of the Supreme Court. Mr. Bowman you my friend are dead were you stand. Get you check book out because you are going to lose this one too. I agree with Mr. Bowman but Monsanto has made sure the laws are in the favor. You (Mr. Bowman) will never weld the power of a multi-billion dollar company that can buy influence in congress and the court. This is the world we live in. Monsanto cares nothing about the farmers. It all about the money, as you are finding out.

  6. Anonymous says:

    Your argument is MUTE then because Mr. Bowman did NOT reproduce the patented seeds he BOUGHT them. And the "advantage" your talking about is off-set by the risk he's taking planting second generation seeds. There is a reason people use "seed" and not "grain".. The argument to me is simply can you hold something to one patent when it naturally occurs?? They "produced" (eventhough it's naturally occuring with other plants now so maybe they are patented too??) a plant the withstands a chemical. Can that patent be "transferred" to other items beyond the original naturally occuring product?? I think if you allow this (which i'm sure they will because the supreme court is short sited right now) it will create so many "questionable" idea's to go forward. Ie can I "patent" the genome of my cattle so I get a royalty off any cows, calves or offspring from my bulls. If someone patents a variety of tree resistent to blight and a bird poops it on my property and a forest grows.. Am going to be sued because that tree that I harvested was patented? I think Mr. bowman bent the rules but then again did he bend them to the extent it can be called someone else's work and therefore he got something for "nothing". TW

  7. Anonymous says:

    You should be shot at sunrise.