On Tuesday, the U.S. Supreme Court heard oral arguments for Vernon H. Bowman v. Monsanto Co, a six-year-long legal battle between a 75-year-old Indiana soybean farmer and a multi-billion-dollar seed conglomerate that could have profound implications for the agriculture industry and the future of American intellectual property law.
The immediate dispute in the case is whether or not Bowman infringed on Monsanto’s patent protection when he sowed second-hand commodity soybeans from a grain elevator — some of which were the genetically modified RoundUp Ready variety produced by Monsanto — then saved the seeds from the plants that grew in his fields to sow again the following year. In agriculture lingo, the practice is known as “seed saving”; farmers had been doing it for millennia before Monsanto started demanding that farmers not do so with the company’s genetically modified, patented seeds. Monsanto has been notoriously aggressive about going after those who, like Bowman, failed to heed that agreement. The Center for Food Safety recently published a report showing that Monsanto has sued 410 seed-saving farmers for patent infringement since it started selling GMO (genetically modified organism) seeds, and it has never lost a case in open court.
Bowman’s attorney, Mark P. Walters, argued Tuesday that his client was allowed to save seeds because Monsanto’s patent protection only extended to the seeds it sold, not their offspring, like those from the grain elevator.
But the justices seemed no more likely to agree with this line of reasoning than had any of the lower courts that had ruled in favor of Monsanto. Seconds after Walters began speaking, Chief Justice John Roberts jumped in with an emphatic rhetorical question:
“Why in the world,” he asked, “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?”
The idea is that patent law is designed to allow inventors to profit off their inventions by preventing customers and competitors from copying the idea behind the invention for a period of time. It doesn’t matter that Bowman’s method of copying the invention utilized a natural process of reproduction. It was still copying. Walters attempted legal somersaults involving the doctrine of “patent exhaustion” to try to argue that patent law didn’t extend to progeny of the seeds — but this seemed just to exhaust the justices. Justice Stephen Breyer, the most vocal among them throughout the debate, said early on that “it really has nothing to do with the exhaustion doctrine.”
“You know, there are certain things that the law prohibits,” Breyer explained. “What it prohibits here is making a copy of the patented invention. And that is what he did.”
Breyer even went on to compare Bowman’s actions to bank robbery and throwing seeds in a child’s face — two things that “you can’t do” with soybeans, unlike, he says, “make tofu turkeys.” (Marking what was surely the first reference to Tofurkey in the 223-year history of the Supreme Court.)
With his central arguments decimated, Walters resorted an emotional appeal on behalf of his client, a small-town David facing a nigh-unstoppable Goliath of a corporation. Referring to Monsanto, he said, “They want the farmers to take all the risks associated with farming, yet they want to control how they use those seeds all the way down the distribution chain.”
Alas, equitability isn’t always the law of the land. Later, when Monsanto lawyer Seth Waxman made his case, the justices let him speak mostly without interruption, which New York Times Supreme Court reporter Adam Liptak interpreted as a sign he would likely prevail.
The Court isn’t expected to issue a decision in the case until June. If they do rule in favor of Monsanto, as seemed likely in oral arguments, Bowman will be forced to pay the $84,456 in damages the U.S. Court of Appeals for the Federal Circuit Court awarded Monsanto in its judgment.
On the other hand, a surprise ruling in Bowman’s favor would strike a serious financial and symbolic blow to Monsanto’s dominance of the American agricultural industry. Though the patent on the first generation of RoundUp Ready beans is set to expire in 2014, such a ruling might open up expensive RoundUp Ready 2 beans, the current standard, to rampant seed saving by thrifty farmers.
That would be good news for farmers who have faced higher and higher prices for commodity seeds over the past decade. (A 50-pound bag of RoundUp Ready soybean seed now costs closer to $50 than the $20 Bowman was paying around 1999, accounting for about half the cost of producing an acre of soybeans, not including the price of the land itself.)
“The advent of genetic modification has radically consolidated the seed industry,” Patty Lovera of Food & Water Watch told The Huffington Post. “Farmers now have to pay Monsanto exorbitant fees for GM seeds. And it’s harder and harder for them to find seeds that aren’t GMO.”
What’s more, a victory for Bowman could dramatically change the way American intellectual property law treats potentially “self-replicating products,” from Adobe Photoshop to the flu vaccine. The theory goes that if Bowman has the right to save RoundUp Ready seeds, maybe it means that us Civilization IV owners have the right to duplicate and distribute copies of the game over the Internet.
It would also be sweet revenge for farmers Monsanto has targeted for seed saving in the past, like North Carolina’s Thomas Wagoner, who settled to the tune of over $80,000 when he was hit with a suit in 2008.
“Monsanto treats us farmers with absolutely no respect,” Wagoner said. “They just come in and they just act like they’re gonna take over and do what they’re going to do because they act like you broke the law.”
If Bowman loses, it’s likely that he’ll be prevented from planting Monsanto seeds ever again. Wagoner’s settlement included a similar provision that lasts just five years, so since then, he’s switched to conventional, non-RoundUp Ready seeds, which cost about half the competition but require you to use more herbicide to control weeds. But Wagoner had good news for Bowman about these seeds: you can save them from season to season.
“If you buy ‘em, you raise ‘em, they’re yours, aren’t they?” he asked. “People have done that since the beginning of time.”
Unfortunately for these small-market farmers, robust intellectual property protection has been a core tenet of U.S. law since the ratification of the Constitution — which may as well be the beginning of time to the Supreme Court.