Photo: walknboston (Flickr)
David And Goliath
Agribusiness giant Monsanto has taken Indiana farmer Vernon Hugh Bowman to the highest court of the land. The issue: Bowman’s long-time practice of planting patented soybean seeds without paying the company a fee.
Judging by the initial reactions of all nine Supreme Court justices, it looks like David probably isn’t going to win the battle against Goliath this time around.
A New Kind Of Seed Is Born
During the ’80s and ’90s, Monsanto invested hundreds of millions of dollars to develop, patent and market seeds genetically modified to survive regular applications of the company’s popular herbicide, Roundup.
While the seeds’ hardiness makes pest control a lot easier, the catch is that planters must sign a contract that says they will not save and reuse seeds year-to-year.
Instead, farmers enter into a legally-binding agreement that they will buy new seeds directly from Monsanto at the beginning of each planting season.
Grain Silo Loophole
Having purchased and employed Roundup Ready seeds legitimately in past years, Bowman had signed Monsanto’s contract.
In 1999, however, he decided to purchased a stock of cheap grain from a nearby silo. Due to the grain’s intended use as feed, it wasn’t advertised as containing Roundup Ready seeds.
But Bowman knew the grain very likely harbored a fair amount of custom-built Monsanto genes, and so he devised a plan to separate the resistant strains from the non-resistant ones.
The strategy was simple. Follow his normal routine of sowing seed and applying a steady stream of Roundup. The plants with Roundup Ready DNA would be easily identified as those that didn’t succumb to the herbicide, and their seeds would be collected and saved for the following year. In other words, Bowman would use natural selection to do the sorting for him.
And for eight years, that’s just what he did — until Monsanto sued in 2007.
Bowman’s lawyers argued that since the seed Bowman cultivated was the offspring of Monsanto grain and not Monsanto grain itself, the doctrine of “patent exhaustion” should prevent him from being penalized for his actions.
But the Indiana Federal Court and, later, the United States Court of Appeals for the Federal Circuit disagreed, ruling that Bowman’s actions did amount to patent infringement and that he owed Monsanto over $84,000.
The case is now being deliberated in the Supreme Court.
Bowman Victory Appears Unlikely
On the first day of hearings, justices seemed generally unsympathetic to Bowman’s claim.
“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?” said Chief Justice John Roberts.
Even the more liberal justices seemed to side with Monsanto.
“The exhaustion doctrine permits you to use the good that you buy,” said Justice Sonia Sotomayor. “It never permits you to make another item from that item you bought.”