Today the Supreme Court of the United States ruled on the Bowman v. Monsanto Co. case in favor of Monsanto. The Atlantic described the case as “a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds“. The case centers around 75 year old* Indiana soybean farmer Vernon Hugh Bowman, and his decision to plant a second crop of soybeans. Below is a brief overview of the case and some of the implications of the verdict.
*(every article about this case needs to point out his age)
For a thorough and legalese heavy primer on the case, read the summary put together by the Cornell University Law School, here, for a less technical primer, continue reading. Mr. Bowman had originally purchased Monsanto’s Roundup Ready Soybeans and planted them as his main crop in the spring. When a farmer buys seed for planting (genetically engineered or not), that seed usually has a contract associated with it that says that the farmer can not replant the harvested grain, Mr. Bowman signed that standard licensing agreement. Up until this point everything is on the straight and narrow, but then Mr. Bowman decided to plant his second crop of soybeans later that year, but he didn’t want to pay for Monsanto’s seed, instead Mr. Bowman purchased his seeds from a grain elevator, what are commonly called “commodity seeds”. The grain elevator would contain the harvest from local farmers, the majority of whom would have likely used Monsanto’s Roundup Ready soybeans. In their licensing agreement Monsanto authorizes growers to sell second-generation seed to local grain elevators as a commodity, without restricting grain elevators’ subsequent sales of that seed. Biofortified notes that “the natural and foreseeable purpose of commodity soybean grain is for feed, processing into oil and textured vegetable protein, etc – the purpose is to enter the food supply, not to be planted“.
Mr. Bowman planted these commodity seeds, without a licensing agreement, and used Roundup as a weed control on this second crop. In choosing Roundup Mr. Bowman ensured that only soybeans with the resistance trait (i.e., Roundup Ready soybeans) would flourish in the crop. According to The Atlantic, Mr. Bowman repeated this practice from 2000 through 2007, and unlike his first planting, he saved the seeds (those selected by him through his use of Roundup to contain the Roundup Ready trait) from his subsequent harvests and replanted them as additional second-crops in later years.
Enter the Courts
Monsanto filed suit against Mr. Bowman claiming that by not buying seeds for each generation he had infringed upon their patents associated with genetically engineered soybeans, which contain patented biotechnology that enables the plants to tolerate glyphosate, the active ingredient in Roundup. Mr. Bowman contended that Monsanto’s patent rights were exhausted once he bought the seeds and that use of progeny seeds is an expected use of the product. Monsanto responded that in the case of self-replicating technologies the patent extends to the technology, in this case, herbicide resistance, rather than the seed itself.
The Federal Circuit upheld a District Court decision awarding Monsanto $84,456.20 in damages for violation of their patented technology, reasoning that Monsanto’s herbicide resistant technology was covered by patent regardless of whether it was the original seed or a product of the original seeds. The case was taken up by the Supreme Court, where it was argued on February 19, 2013, the full transcript is available here. After the arguments were heard, many news outlets and organizations seemed to think that the decision would once again favor Monsanto, and on May 13, 2013, Justice Kagan delivered the opinion for a unanimous Court ruling in favor of Monsanto. From the opinion:
By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit.
After inventing the Roundup Ready trait, Monsanto would, to be sure, “receive [its] reward” for the first seeds it sells. But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly. And farmers themselves need only buy the seed once, whether from Monsanto, a competitor, or (as here) a grain elevator. The grower could multiply his initial purchase, and then multiply that new creation, ad infinitum – each time profiting from the patented seed without compensating its inventor.
Innovation and Investment
This verdict is good news for innovation and investment in technology. If the courts had ruled in favor of Mr. Bowman, there would be little incentive to invest in not just agricultural biotechnology, but also other innovations in computers, medicine, and other technologies. Without protections provided by patent law, anyone could create a virtually limitless supply of patented technology, thereby eliminating the incentive to invest in research and development for fear of not recouping costs. Monsanto invested 13 years and hundreds of millions of dollars into developing herbicide-resistant seeds, and regardless of your personal feelings towards the company, they deserve to recoup and profit from their investment.
That is not to say that the only reason to invest in research is for profit, as the President of the National Research Council of Canada would have you believe (his actual quote ”scientific discovery is not valuable unless it has commercial value“). Quite the contrary, profit is the result of doing research, and should not be the reason to do it, or invest in it. Phil Plait notes that “basic scientific research is a vast endeavor, and some of it will pay off economically, and some won’t. In almost every case, you cannot know in advance which will do which“. Basic scientific research eventually paved the way for Roundup Ready technology, and that investment and foresight, should be rewarded with patent protection. Ensuring protection for investments in innovation and technology through patent law, also ensures that basic scientific research, not just applied, can continue to be funded, and that is a good thing.
- Supreme Court rules in favor of Monsanto, says farmer violated seed patents (theverge.com)
- High court rules for Monsanto in patent case (stltoday.com)
- Monsanto wins landmark patent case in Supreme Court (VIDEO) (secretsofthefed.com)
- U.S. Supreme Court Unanimously Backs Monsanto’s Seed Patents (reason.com)
- Supreme Court rules for Monsanto in Indiana farmer’s GM seeds case (guardian.co.uk)
- Monsanto wins patent case, could have big impact on biotech (politicalticker.blogs.cnn.com)