Supreme Court agrees to hear case of Indiana crop farmer versus Monsanto
The U.S. Supreme Court surprised many by agreeing to review a patent infringement case between an Indiana farmer and Monsanto Company over the use of glyphosate-resistant soybeans.
Legal experts agree that it is a case that could have big implications for farmers and for intellectual properties like genetically modified (GM) seed and even future nanotechnologies.
Vernon Hugh Bowman, a 74-year-old farmer in southwest Indiana (Knox County) asked the high court to review a decision reached by two lower courts that he infringed on Monsanto's patent for genetically modified soybeans.
Bowman has planted Monsanto's "Roundup Ready" soybeans for many years and signed the technology agreement required by the company. But like many farmers with longer growing seasons, he tries to squeeze in a second crop to get more profit from his land.
For his "second-crop" soybeans, Bowman simply bought commodity beans at his local elevator and planted them, not wanting to spend top dollar for the bagged seed that comes with a technology fee. He wanted to reduce his cost of inputs for this second crop in case bad weather and early frosts cut the growing season short.
What he found was that these commodity beans also appeared to be resistant to glyphosate or "Roundup", so he was able to use the same weed control practices as he did with his first crop.
It is estimated that as much as 94 percent of the soybeans grown in Indiana are of the genetically modified type that allow it to be resistant to glyphosate.
According to papers filed with the Supreme Court, Bowman never saved seed from his "first crop" soybean harvest, but continued to follow his second crop practices from 2000 through 2007.
He saved seed from these "second crop" soybeans as well as continuing to buy commodity soybeans from his local elevator to plant after his first crop was harvested.
Monsanto eventually realized that Bowman was growing more soybeans than his Pioneer first-crop purchases could possibly generate. When confronted by Monsanto officials, Bowman explained his use of commodity beans to plant his second crop.
Monanto sued the farmer in 2007 alleging patent infringement.
In the initial ruling in District Court, Judge Richard L. Young found compelling Bowman's argument "addressing the monopolizing effect" of the introduction of patented genetic modification upon a "whole species of crop producing plants," but said the farmer had not overcome the patent law precedent, which favored Monsanto.
Bowman was ordered to pay Monsanto $84,000 in royalties that the company argued it had lost because of the farmer's actions.
When Bowman appealed, the appeals court upheld the lower court ruling based on precedents from earlier cases Monsanto had brought against seed savers and farmers.
According to the Center for Food Safety, as of January 2010, Monsanto had filed 136 lawsuits against farmers for alleged violations of the company's Technology Agreements and/or its patents on genetically engineered seeds, but said the list of other suits are unknown because of confidential out-of-court settlements.
There were also three suits against seed companies that did not involve alleged seed saving by farmers, the group said. The Washington-based group said that Monsanto has sued farmers and small farm businesses in at least 27 states.
When the Supreme Court agreed to review Bowman vs. Monsanto Co. earlier this month, the court said it had not yet addressed "patent exhaustion in the context of self-replicating technologies" like seed.
The lower court had ruled that farmers can use commodity soybeans for anything they want, except to grow them as seed.
In granting the petition to review the Bowman case, the Supreme Court said it presents an issue "of both core practical importance to agriculture and of vital legal interest to patent law.
"Practically, this issue affects every farmer in the country and the method of planting that farmers such as Mr. Bowman have used for generations," the court said. In legal terms, the lower courts' rulings are in conflict with existing precedents forged by the Supreme Court - another reason the high court took on the case.
As such, it is "of great practical importance to a wide swath of this country's economy," the court wrote in granting the writ saying it would review the case.
Patent exhaustion has been the law since a court case established it in 1942 along with a patent holder's attempts to create explicit post-sale restrictions such as the ones Monsanto utilized in this case.
When the appeals court ruled in this case, it said that once Bowman planted the commodity seeds and the next generation of soybeans developed on the plants, he had created "a newly infringing" article, in terms of patent law.
SURPRISED BY REVIEW
"To be honest, we're a little surprised, but very pleased. Convincing the Supreme Court to hear the case was somewhat of a long shot," said Darin Von Ruden, president of Wisconsin Farmers Union.
The Supreme Court chooses to take less than two percent of the cases presented for review.
Von Ruden said the challenge in this case was even steeper because the Justice Department urged the Supreme Court not to take the case.
They had felt that the case, if it goes in favor of Bowman, would reduce the incentive of companies to invest in innovation and research.
In its brief to the court, the Justice Department had said that if the case goes against Monsanto, patent protection could be rolled back 20 years to just one year or even one growing season.
National Farmers Union stood behind Bowman and supported his request for the Supreme Court to review his case.
"Farmers Union is glad that the Supreme Court will be taking up this question of patent exhaustion on genetically modified seeds," said Von Ruden. "There needs to be limits - Monsanto's control over the seed supply has gone far enough."
Monsanto said a decision in favor of the farmer would "irrevocably harm its business model." The company also said "its ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the market."
Monsanto's argument is that their "Roundup Ready" patent is "self-replicating" and renews itself every time a new generation of seeds is produced.
The briefs and oral arguments in the Bowman case have not yet been scheduled but will take place sometime next year. The decision will be released sometime after that, generally in the early part of the summer.
BIG CASE STILL PENDING
Another potentially big case for Monsanto is still pending in the U.S. Court of Appeals for the Federal Circuit in Manhattan, NY. The case of Organic Seed Growers and Trade Association et al vs. Monsanto involves more than 300,000 individuals and 4,500 farmers.
They seek a ruling that would forbid Monsanto from suing them for patent infringement if their crops and seeds become contaminated by the genetically modified products released by Monsanto.