Colleen Scherer, Managing Editor, Ag Professional  |   March 11, 2013 resize text

Colleen Scherer In a lawsuit many have called David vs. Goliath, the Supreme Court heard arguments Feb. 19 in the case Bowman v. Monsanto Co., which could have huge implications for the agriculture industry if Monsanto loses this case. Agricultural biotechnology and innovation have been built largely upon Monsanto’s Roundup Ready technology and the idea that manufacturers can have plant variety protection certificates and utility patents for their modified plants and subsequent seed.

The lawsuit stems from Vernon Bowman who bought and planted unmarked soybean seeds he bought at a local grain elevator. These seeds contained the Roundup Ready trait. Monsanto accused Bowman of infringing on its patent rights by planting “saved” seed containing its genetics. Bowman argues that any second-generation seed that he bought and planted is not protected by Monsanto’s patents.

In other lawsuits, Monsanto has taken farmers to court when they saved back seed from their first generation Roundup Ready crop and replanted the second generation. In those cases, those farmers had bought the first generation. In the Bowman lawsuit, he never bought first generation seeds. So, at issue before the Supreme Court is whether Monsanto’s patents continue past the first generation.

In other patent laws, there is “First Sale Doctrine,” which stipulates that once a patented product is sold, the new owner is free to do with it as he sees fit except for reverse engineer, to manufacture and sell a copied version. However, under the current law, the difference with a product like soybeans, which can self replicate, is that the buyer is not purchasing the seeds as much as licensing to use the patented technology in the seed. The license is a limited-use license placing restrictions on the license holder. Farmers may or may not have understood this distinction since they’re used to paying for what they can see versus a concept.

Based on this law, it seems unlikely that the U.S. Supreme Court will overturn the case and rule in favor of Bowman. All previous appeals have ruled in favor of Monsanto. After testimony was given Feb. 19, U.S. Supreme court justices signaled that Monsanto was in a strong position in the case. A decision is expected in June.

Reuters reported that Justice Stephen Breyer told Bowman’s lawyer, Mark Walters, that Bowman could use the seed he had purchased for other purposes but could not harvest the crop from the next generation of seed.

Another issue at the heart of the case is innovation. Several justices indicated after oral arguments that a ruling for Bowman would stifle innovation in the agricultural biotechnology industry.

“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.

It is unknown if the Supreme Court will actually clarify when or if Monsanto’s patents are exhausted after one generation. The court could simply state that Monsanto’s patents extend to second-generation seed, end of story. Hopefully, the court will provide clarification for future understanding of purchasing any seeds that have been patented.

It is hard to imagine the court ruling in favor of Bowman, considering the implications the ruling would have. Patent protection for seed would be crushed and could have implications in other parts of the world where Monsanto is being challenged over royalty fees for its patented seed sold in other countries. The cascade could be devastating for agricultural innovation and technology. In the end, this case isn’t about good vs. evil or David vs. Goliath. It’s about whether seed patents are exhausted after one generation.

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