U.S. ag wary as Monsanto heads to Supreme Court

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A 75-year-old Indiana grain farmer will take on global seed giant Monsanto Company at the U.S. Supreme Court next week in a patent battle that could have ramifications for the biotechnology industry and possibly the future of food production.

The highest court in the United States will hear arguments on Tuesday in the dispute, which started when soybean farmer Vernon Bowman bought and planted a mix of unmarked grain typically used for animal feed. The plants that grew turned out to contain the popular herbicide-resistant genetic trait known as Roundup Ready that Monsanto guards closely with patents.

The St. Louis, Mo.-based biotech giant accused Bowman of infringing its patents by growing plants that contained its genetics. But Bowman, who grows wheat and corn along with soybeans on about 300 acres inherited from his father, argued that he used second-generation grain and not the original seeds covered by Monsanto's patents.

A central issue for the court is the extent that a patent holder, or the developer of a genetically modified seed, can control its use through multiple generations of seed.

The Supreme Court's decision to hear the dispute has sparked broad concerns in the biotech industry as a range of companies fear it will result in limits placed on their own patents of self-replicating technologies.

At the same time, many farmer groups and biotech crop critics hope the Supreme Court might curb what they say is a patent system that gives too much power to biotech seed companies like Monsanto.

"I think the case has enormous implications," said Dermot Hayes, an Iowa State University agribusiness and economics professor who believes Monsanto should prevail. "If Monsanto were to lose, many companies would have a reduced incentive for research in an area where we really need it right now. The world needs more food."

The court battle has ballooned into a show-down that merges contentious matters of patent law with an ongoing national debate about the merits and pitfalls of genetically altered crops and efforts to increase food production.

More than 50 organizations - from environmental groups to intellectual property experts - as well as the U.S. government, have filed legal briefs hoping to sway the high court.

Companies developing patented cell lines and tools of molecular biotechnology could lose their ability to capture the ongoing value of these technologies if the Supreme Court sides with Bowman, said Hans Sauer, deputy general counsel for the Biotechnology Industry Organization.

The case also is important to regenerative medicine that relies on stem cell technologies. A stem cell by definition is a cell that can self-replicate, thus the case may answer the question of whether a patentee can control progeny of a patented stem cell, according to Antoinette Konski, a partner with Foley & Lardner's intellectual property practice group.

Monsanto, a $13 billion behemoth in agricultural seed and chemical sales, also sees the case as much bigger than itself.

"This case really centers on the question of twenty-first century technology such as what we bring in agriculture and other companies bring for say stem cell research or nanotechnology.... and how they're going to be handled under principles of intellectual property law," said Monsanto general counsel Dave Snively.

Self-Replicating

Because seeds self-replicate, creating progeny when planted, they are unlike more traditional patented products. Using a computer or smartphone does not create more computers or phones. But using a seed can make new seeds.

For generations all around the world, farmers have practiced the art of saving seed, holding onto some of the grain they harvest each season to plant in a subsequent season. The advent of patented biotech seeds has changed that as Monsanto and rival seed developers barred farmers from seed saving, arguing that if farmers do not buy new seed each year the companies cannot recoup the millions they spend to develop the specialty seeds.

Transgenic crops, which splices genes from other species into plant DNA, have given farmers crops that resist insects and tolerate treatments of herbicide, making killing weeds easier for farmers. The majority of U.S. corn and soybean acres are now planted with patented biotech seeds.

The case before the Supreme Court traces its roots to 1999, when Bowman decided to plant a "second crop" of soybeans after he harvested winter wheat from the farmstead he runs near Sandborn, Indiana.

While he used Monsanto's Roundup Ready engineered seeds for his main, or "first" crop, Bowman said he decided to use inexpensive commodity grain that he could purchase from a local grain elevator for his "second" planting of soybeans in late June. Yields are generally lower for late-planted soybeans because conditions tend to be more optimal in April and May.

The mixture of grain Bowman bought, which he dubbed "junk," carried no patent technology agreement and no directive prohibiting seed saving as do the bagged and branded soybean seeds sold by Monsanto and other seed companies.

The soybean crop turned out so good that Bowman saved some of the seed generated by the plants and sowed them the following year for another late crop. He repeated the process year after year, sometimes supplementing his second planting with more commodity grain he used as seed. All the while he continued to buy first-generation seed each year for his main crop of beans. For those purchases, he signed required "technology agreements" pledging not to save the offspring of those seeds.

Monsanto began investigating Bowman's planting activities in 2006 and asserted that even though he was not saving seed from the progeny of the first-generation seeds he bought, his use of commodity grain and the progeny was a patent violation.

Bowman argued that Monsanto's rights to the seeds he purchased from the grain elevator were exhausted because they were not the first generation seeds other farmers had purchased and planted, but rather a mix of later generation progeny.

"It didn't occur to my mind that this would be a problem," said Bowman, who doesn't have a computer at home so he goes to the library to read about his case on the Internet. "Farmers have always been allowed to go buy elevator grain and use for seed. You have no idea what kind of seed you're buying at an elevator. They claim I'm making a new seed by planting it. But that's far-fetched reasoning."

Bowman said he just wanted cheaper seeds. His legal brief states the technology fees for Roundup Ready soybeans have risen to $17.50 per bag by 2009 from about $4.50 in 1996.

Big Stakes for Both Sides

A lower court ruled in favor of Monsanto, and in May 2010 it ordered Bowman to pay the company $84,456. The Federal Circuit Court of Appeals also sided with Monsanto in September 2011.

The Supreme Court's decision to hear the case has raised the hopes of those backing Bowman.

In one of a dozen briefs filed in his support, farmer, environmental and food safety groups claim the courts have carved out an exception to existing patent law that gives biotech companies too much control. They want the Supreme Court to broaden farmers' abilities to use seed, not restrict them.

"Through a patenting system that favors the rights of corporations over the rights of farmers and citizens, our food and farming system is being held hostage by a handful of companies," said Andrew Kimbrell, executive director of the Center for Food Safety, one of the groups supporting Bowman. "Nothing less than the future of food is at stake."

Bowman's attorneys allege specifically that the appellate court created a "conditional sale" exception to a long-standing doctrine of patent exhaustion in a way that conflicts with existing law. (For more details, click on )

But Monsanto backers say without extended patent protection, technology companies will not be able to recoup their investment in research and development, and advantageous new technologies could be shelved.

"This case presents a matter of great importance to America's farmers and the decision will have acute impacts on how agricultural producers will... meet the nutritional demands of a growing global population," states one brief filed by 20 soybean, corn, wheat and sugar beet growers groups.

Back on his farm in Indiana, Bowman is looking forward to his trip to Washington and said he does not understand what all the fuss is about. He said few farmers make use of commodity grain for planting, and he doesn't see how a few hundred acres of soybeans hurts Monsanto's billions in annual revenues.

"I bought new seed every year for my first crop. If I had such a good scheme why did I do that," said Bowman.

"If I done something wrong I should pay for it. If I didn't then I shouldn't. I don't think I did," he said.


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Joe Scrimger    
Marlette, MI  |  February, 18, 2013 at 03:48 PM

The world needs more food? Have you went to the grocery store lately? We are the most overfed, over weight, under nourished Nation in the world. The world does not need more food it needs better quality food. But when everyone is focused on yield versus quality we end up more focused on pesticide traits, which have nothing to do with food quality, in fact food quality got left out of the beans so that the herbicide trait could be put in, which is partially why they are more susceptible to disease like white mold. We may need to start over with soil quality being the basis for food quality versus the legal battle that appears to be taking place with groups that are more interested in share holder returns than food or anyone's health.

Chuck    
Derwood, MD  |  February, 18, 2013 at 04:34 PM

You have not been to many foreign countries that have difficulty feeding the masses. Not saying the genetics is right, but your point about we have enough food I disagree with. I have visited these countries in recent months, and some are really hurting.

Trevor    
Houston  |  February, 18, 2013 at 04:04 PM

I will bet a dollar to a donut that Dermot Hayes--the Iowa State professor---is also a paid consultant to Monsanto. There is no hope of Justice here! John Ashcroft Ex Attorney General in the infamous "Bush Regime" was ex General Counsel to Monsanto. IT IS ALL FIXED WITH THE CORRUPT CONGRESS !! In my opinion--Monsanto DOES plan to control the Food Supply. ONLY IN AMERICA !!!????

John    
Ohio  |  February, 18, 2013 at 04:25 PM

As long as Mr. Bowman didn't spray his "junk seed" with glyphosate, I agree with him. If he did, Monsanto has every right to their fees. This may have a huge impact on global food production in the future. Conspiracy thoeorists and tree huggers have no business concerning themselves with this...it's too important.

Cindy Petitti    
Louisville,Ohio  |  February, 18, 2013 at 04:37 PM

The control that Monsanto has over the farming industry is an outrage!!! They are the big bully with all the money therefore they think they can push around the small farmers that doesn't want to grow their poisonous seed, because they can't afford to fight them. Growing GMO crops is not helping us feed the multitudes, it's poisoning all of us!!!!!!

Bill Cisney    
Madisonville, Ky  |  February, 18, 2013 at 05:16 PM

He broke the law and knew exactly what he was doing. Monsanto has spent millions of $'s developing this seed and yes, it helps their bottom line. It has also made a lot of money for Ag suppliers and most of all farmers. What is the incentive for companies to do research and development if every Joe Blow can by-pass the patent for a self-serving purpose. Should we go back to self-pollenating corn vs. hybrids that have been bred over time? I completely disagree with Cindy! GMO's are the going thing and should be. Food is scarce world-wide and it is getting worse every day. Food production is not keeping up with population growth. I wish there was GM cows that could survive a drought!

Bill Peele    
NC  |  February, 18, 2013 at 07:30 PM

Comments like Cindy's " it's poisioning all of us!!!!!" infers that the FEAR of what you don't know is worse than a GMO. Educate yourself in the value of genetics and a much improved and progressive agriculture. We have a job to do with managing pests and producing food and fiber. It is too bad that this good science got labeled as an "organisim", it would have been better for us all if they had gone with ....say geneticallly modified benefit. I like roundup ready, and I like BT and the other benefits of pest management that the Ag industry has brought forward for our future in production agriculture.

Cooper    
Iowa  |  February, 18, 2013 at 08:34 PM

Trevor, are you trying to start a rumor? Just google the guy, he's an econmics prof at ISU. His bio is online, and he has no ties to Monsanto. He DOES have access to a lot of research, research that says unless somebody gets creative, we're going to have a food shortage in about 35 years. Because of America's productivity, and food availabiltity, we are blinded to the problem. A statistic from last week's news says 6% of the average American household budget goes toward food. The next closest country on the list was France where they spend an average of 14% on food.

george pettit    
princeton,ky.  |  February, 18, 2013 at 08:48 PM

Well said,Bill!This whole event has more to it than is being told.If intellectual property can be stolen and legally supported then the future of food production will be quite bleak.

George Kinuthia    
Kenya  |  February, 19, 2013 at 01:11 AM

I live in one of those countries that a huge food deficit and still believe the problem is land tenure with millions of acres of arable left idle in the hand of people in leadership and position of influence while most of the peasant farmers carry out their activities in marginal land with little or no husbandry or subsidies . if farmers in americas and Europe can get subsidies what about Third World ones still reeling form the effects of colonial displacements and the deprivation arising from dictatorships! multi Nationals developing GM seeds will only create more poverty and economic slaves.

Joe    
Marlette, MI  |  February, 19, 2013 at 08:26 AM

I think the figures are that we currently grow enough food in the world to feed 125% of the world, but 15% of the world starves. Its not about growing a bigger volume of food it is more about the distribution of the money. Don't disagree with what you saw in you visit, but we really need to get at the real causes of the problem.

Katie Weekley    
Red Deer, Alberta  |  February, 19, 2013 at 10:41 AM

If I understand Monsanto. They produced a seed. If you buy their seed I imagine you have to sign a contract or something to Monsanto. If Monsanto seed inadvertantly gets into a crop seeded in the original way, not Monsanto seed, the farmer can be sued for using the Monsanto seed? We have seen crops growing where they have become infected with the Monsanto seed through no choice of that farmer. In fact the farmer is not using the Monsanto seed because he doesn't want to. So that farmer can be sued by Monsanto because he is using Monsanto seed? It is ridiculous. Can the farmer then sue the person using Monsanto seed or the person who threw the seed into his crop? If Monsanto seed is so wonderful then people will buy it and use it. If people choose not to use it they won't buy it or use it but that doesn't stop people who infect the crops with Monsanto seed. Does Monsanto seed LOOK different from other seed? Is it stained red or something so it can be spotted and disposed of because the farmer could get pounced on by Monsanto? This can go on and on and get even more ridiculous. I am so tired of Monsanto. They have created so many other problems with their "brilliance". I can only imagine how many more problems created by them and their seeds. I wish they would just market a product like anyone else and get off the farmers case if they don't want to use it.

Katie Weekley    
Red Deer, Alberta  |  February, 19, 2013 at 11:03 AM

Good for you Bill, you like it then use it. Cindy doesn't and deserves her opinion. How do the people who don't want to eat a GMO product know that is what they are buying? Is it noted on the packaging "This is a GMO product" or "this product was produced with Monsanto seed" Don't think so. It is hidden from the end user who just may not like it as much as you do like it. The comment earlier said about a genetically modified cow just made me cringe. It is not even funny. Again, how would the end user know the meat from that cow is genetically modified? You may think that people who do not believe in GMO anything are ignorant. They are not ignorant, they just believe differently than you. I think that not identifying products that are GMO is dishonest and misleads the end user.

dmayer    
usa  |  February, 19, 2013 at 05:46 PM

Will monsanto own or have rights to all of the seeds due to contamination from their gm seeds pollen blowing in the wind?

dmayer    
usa  |  February, 19, 2013 at 05:48 PM

Monsanto gives its property away for failing to stop cross pollination with other farmers seeds.


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