WASHINGTON, DC, May 14, 2013 – In a unanimous ruling Monday, the U.S. Supreme Court held that an Indiana farmer had infringed on Monsanto’s patent rights by planting genetically modified soybeans he purchased from a grain elevator instead of the company or its authorized dealers.
Biotech giant Monsanto produces and sells a genetically modified soybean that is engineered to withstand the herbicide Roundup, also made by Monsanto. Farmers who purchase Roundup Ready soybeans must also sign a licensing agreement that allows them to plant the purchased seed in only one season.
Under the agreement, farmers may either consume or sell the resulting crop, but may not save the harvested soybeans for future planting. As a result, farmers who want to use Roundup Ready soybeans must buy new seeds from Monsanto each year.
An Indiana farmer for over four decades, Vernon Hugh Bowman, 75, has been purchasing Roundup Ready soybean seeds from Monsanto for several growing seasons and has followed the terms of the agreement.
However, looking for a less expensive way to grow a riskier second late-season crop (Roundup Ready soybeans are nearly three times more expensive than regular soybeans), Bowman purchased soybeans from a grain elevator, which are generally intended for human and animal consumption, but not for planting.
Bowman planted the soybeans believing that a large amount were probably Roundup Ready (it is estimated that around 90% of soybeans in the U.S. are genetically modified to withstand herbicides), and sprayed this second crop with Roundup, thereby identifying the Roundup Ready plants. He then harvested this second crop and saved the seeds to plant in the next year’s late-season crop.
After several years of this practice, Monsanto sued Bowman for patent infringement.
In an opinion by Justice Kagan Monday, the Supreme Court agreed unanimously with Monsanto, holding that farmers who reproduced patented seeds through harvesting and planting were guilty of patent infringement and liable for damages. The Court awarded Monsanto $84,456.
At the heart of the case was the doctrine of patent exhaustion, under which the purchaser of an article has the right to use or resell the article, but is not allowed to make copies of the patented invention.
Bowman argued that he was not infringing on Monsanto’s patent because soybeans were self-replicating—he didn’t copy them, the seeds copied themselves. The Court disagreed, “Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops,” Justice Kagan wrote in the opinion.
During oral arguments for the case in February, the Justices expressed the belief that Bowman’s practices would threaten corporations’ incentive for innovation and invention, the protection of which is the main purpose of patent law.
Even though corporations involved in vaccines, cell lines, software and other self-replicating products were closely monitoring the outcome of the case, Justice Kagan made it clear that this decision was a narrow one, applying only to the case at hand, and leaving the question of whether patent exhaustion applies to other products for a later time.
“We recognize that such inventions are becoming ever more prevalent, complex, and diverse,” Kagan wrote. “In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”
Monsanto representatives were duly pleased with the Court’s decision.
“The court’s ruling today ensures that longstanding principles of patent law apply to breakthrough 21st century technologies that are central to meeting the growing demands of our planet and its people,” said Monsanto executive vice president David F. Snively. “The ruling also provides assurance to all inventors throughout the public and private sectors that they can and should continue to invest in innovation that feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.”
Opponents of GMOs and Monsanto disagreed.
“Mr. Bowman’s case represents a systemic crisis in U.S. agriculture,” said Center for Food Safety Executive Director Andrew Kimbrell. “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. Nothing less than the future of food is at stake.”
The fact that the decision was unanimous also “tightens the seed giant’s stranglehold on American agriculture” ” according to Thomas Cluderay, General counsel for The Environmental Working Group. Support from the U.S. Supreme Court “will no doubt pave the way for greater use and development of genetically engineered seed products and use of toxic pesticides, such as Roundup, on our farm fields.”
Other critics of the opinion disagree with the idea that a renewable resource can be patented. “What was formerly a free, renewable resource has now become a privatized commodity,” said Debbie Barker, Save Our Seeds program director. “Current patent regimes impact not only the historical fundamental right to save seeds, but, ultimately, the right and access to food.”
And Mr. Bowman is not alone, according to the Center for Food Safety, as of January 2013 Monsanto has filed 144 lawsuits against 410 farmers and 56 small farms alleging patent infringement in 27 different states.
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