A Soybean in the Supreme Court: Bowman v. Monsanto

(Photo: David DeHetre)

The idea of patenting a living organism is strange to some people, if not frightening. Nonetheless, these kinds of patents have existed for decades. On Tuesday, the Supreme Court held argument in Bowman v. Monsanto, a case that will test just how far these patents reach. 

Vernon Hugh Bowman is a 75-year-old Indiana soybean farmer. Like pretty much every soybean farmer in America, Bowman is a regular purchaser of “Roundup-Ready” soybean seed from Monsanto. Farmers who plant the variety are able to kill weeds, but not soybeans, by spraying their fields with Roundup. Today, over 90% of the soybean crop in the U.S. uses Monsanto’s patented variety.

One special feature of a living thing is that it can grow and reproduce. And so farmers who buy Roundup-Ready soybean seed sign a contract with Monsanto promising that they will not replant any of the soybeans that they harvest. Monsanto wants farmers to buy a fresh batch of seed every time they plant a soybean crop — and not grow their own.

For years Bowman paid his money, signed the contract, planted his Roundup-Ready soybeans, and harvested a nice crop. And then he, like many soybean farmers, decided to plant a second crop in the same growing season. The second crop is riskier (cooler weather and lower soil moisture often reduce yields).  And so rather than purchase a second round of expensive seeds from Monsanto, Bowman went to a grain depot — basically, a huge pile of seeds of low quality, used usually for animal feed — and bought a batch of bulk soybeans. Bowman knew that a lot of what he bought would inevitably be Roundup-Ready, given Monsanto’s huge market share. 

He planted the seed and harvested a crop. And Monsanto sued, arguing that by growing the soybeans Bowman had made unauthorized copies of Monsanto’s patented product.  

Bowman’s principal legal defense is the “patent exhaustion doctrine.” Patent exhaustion is what enables you to buy a car or computer containing many patents and then sell it to someone else. The idea is that once a good is sold by a maker, the patent is “exhausted” and the maker has no rights in further uses or sales. In the Supreme Court, Bowman argued that this rule allowed him to buy patented seeds from another farmer and plant them.  

But unlike a car, a soybean seed is self-replicating. And so, argued Monsanto, the act of planting the soybean is tantamount to copying. Just as you can’t make a copy of a Cadillac you legally bought and sell that, you can’t make copies of Roundup-Ready soybeans and sell them. Patent exhaustion doesn’t mean the freedom to copy. 

In the Supreme Court this week, several justices seemed to agree with Monsanto. “Why in the world,” Chief Justice Roberts asked, “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?”  Justice Sotomayor struck a similar tone: “The exhaustion doctrine permits you to use the good that you buy,” she said. “It never permits you to make another item from that item you bought.”

Yet from Bowman’s perspective, all he did was do what farmers have done for generations: buy bulk seed from other farmers and plant it. And since Roundup Ready soybeans aren’t a different color or affixed with a label, there is really no way to just buy non-Roundup Ready seeds in bulk. 

The central problem, in short, is that living things breed. And when they do so, they make copies. As patents on living organisms proliferate — consider patented animals, of which there are many already — the question of how to balance the needs of the patent system with the freedom to engage in time-honored and natural activities is going arise time and again. Bowman v. Monsanto is just the first battleground. 

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  1. Seminymous Coward says:

    I look forward to seeing how this interacts with human genetic enhancement. Strong biotechnology intellectual property laws and the inevitable desire to improve our own species are on a collision course.

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    • Travis says:

      Keep an eye on Association of Molecular Pathology v. Myriad then. Another case on the docket this term directly on point with one of the three primary questions being whether isolated human genes are patentable subject matter.

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  2. Ken Smith Jr says:

    “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?”

    Isn’t that what farmers have been doing since the dawn of time? Any time they selectively breed plants and animals, they usually sell them to others where they can be reproduced again. It seems like this was never a problem and has worked out very well for humanity until greedy corporations started to get involved.

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    • J1 says:

      The dispute is over genetically modified seed, not selectively bred seed. If greedy corporations protecting patents on GM seed is such a problem, why don’t farmers just buy non-patented seed?

      Hot debate. What do you think? Thumb up 12 Thumb down 14
      • Sociologist at-large says:

        The real knowledge of it does not yet exist. Patent (protect) first, then publish.

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      • Scott G says:

        Didn’t you read the article? The traditional places they are buying from can’t certify as non-manipulated seed lines. Monsanto has a strangle-hold on the market. But in the end the farmers are partly to blame for knowingly putting themselves at the mercy of one company to make their harvest easier.

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      • J1 says:

        I guess I didn’t read the article, because the article the link sent me to didn’t address any difficulty in purchasing “non-manipulated” seed lines one way or the other. Since a quick google search reveals lots of vendors who will sell farmers non-GMO seeds, that seems like a non-issue. Monsanto has 90% of the market because it sells a superior product.

        The article did say Mr. Bowman purchased seed from a grain elevator with the specific objective of circumventing Monsanto patents. My guess is this one isn’t going to go his way.

        Off topic: does anybody else think the AP photo of Mr. Bowman makes him look a little like Jack Kevorkian

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      • Mike B says:

        Usually they don’t buy non-patented seed because they want to use Roundup and need seeds that are ready for it. In like 5 or so years when the parent expires and farmers can go back to the good old methods the whole anti-Monsanto crowd is going to be left standing there feeling silly because unlike copyright patents are still fairly limited monopolies.

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      • Fritz III says:

        “Selectively bred seeds” is just another method of genetic modification. See Teosinte->Maize->Corn. See Gregor Mendel.

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  3. Nick Naranja says:

    Here’s the thing, Bowman didn’t save his own seed. He went to a grain depot and bought seed that was of low quality and likely consisted of both patented and unpatented varieties. He sprayed the seed with round-up without being certain that the seed would survive. The question Justice Roberts asked indicates that he doesn’t know much about farming. Seed purchased from a seed dealer is cleaned, treated with fungicides, insecticides, and is of a certain variety. Farmers will continue to pay for that uniformity and quality. I would argue that grower agreement only covers use and re-use of seed purchased from the seed dealer. Purchasing seed of unknown origin should not expose the farmer to risk of a lawsuit.

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    • Ryan says:

      I couldn’t agree more, it seems cut and dry. BUT….. this just goes to show how much the people in power are in bed with big corporations.

      I bet these idiots don’t sleep well at night. That is all I can say. They know they are wrong and probably pay for it everyday. ENJOY your guilty conscience Chief Justices.!

      Hot debate. What do you think? Thumb up 21 Thumb down 24
  4. Jon S says:

    Your article said that he knew the bulk seeds would be Roundup-ready but does not mention if he used Roundup on the plants…What if Bowman simply purchased the seed without using them as Roundup-Ready? Since so many seeds will be of the patented variety, there is little he can do to buy bulk seeds without including any of the patented variety, unless perhaps he does not use them for the patented purpose, i.e. he doesn’t use Roundup for weed control.

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    • Brandon says:

      He did you use roundup on the second crop, knowing that a bulk of the depot seed would be roundup-ready.

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    • Mike B says:

      One question will be does Monsanto sell its seed along with an explicit license to produce new seeds when you plant and grow them. If it does not then technically everyone who plants the seeds purchased from Monsanto is violating the parent.

      The ultimate solution here is to simply alter the genetic modification so that second generation seeds aren’t viable to reproduce. Boom, problem solved, no lawyers needed.

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      • MMM says:

        Actually, this was done – google “terminator gene” – but people were a bit wary of having a gene out there in the environment that could kill crops, given the possibility of cross-fertilization. Plus… do we really want all of our grain elevators to be full of non-fertile seed?

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  5. João Parreira says:

    This sentence shows just how ridiculous these laws are: “you can’t make copies of Roundup-Ready soybeans and sell them”. Farming soybeans is by definition to make copies of soybeans and sell them. If the farmers can’t sell soybeans, they have no incentives to buy seeds from Monsanto or from anyone else. Perhaps if nobody farms soybeans or any other food anymore, the patent laws will be followed.

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    • Mike B says:

      The purchase of seed from Monsanto can include a license to make copies.

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    • Brian says:

      Mike, if you want to know exactly what’s in an agreement, I posted my 2011 agreement here. http://bit.ly/HQYrvq
      Essentially I can do whatever I want with the harvest except use it to plant another crop. That being said about half my soybean acres gain a premium price because I grow them to be used as seed. I contract those acres to be grown with two different seed companies. I get a premium for the extra work that goes into producing a pure product.

      You’re onto something with your ultimate solution. You speak of what’s commonly known as a terminator gene. Many people falsely think these are already in use in GM crops. Not true. No seed company has yet to put this technology into place in GM crops. It seems it would solve a great many issues as you say. For more on GURTs, Biofortified has a great post on them. http://www.biofortified.org/2009/11/terminator-2-my-mission-is-to-protect-you/

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  6. Philippe says:

    > “The exhaustion doctrine permits you to use the good that you buy,” she said. “It never permits you to make another item from that item you bought.”

    Does that mean if I buy to broken items, and make a third one from the now spare parts of each, I owe patent royalties? Do back yard repairmen who fix up old lawnmowers owe the Briggs & Strattons of the world money?

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    • Mike says:

      Another propblem here is cross-contamination. Due to the proliferation of Monsanto Round-Up Ready seeds, and the fact that the pollinate via wind, bugs, etc., there are few crops that DO NOT contain the Monsanto (or other companies) genetic profile. Even farmers that use non-GMO soybean seeds that “save seed” for replanting, are being sued by Monsanto due to the cross-pollination. Farmers are being railroaded by companies and our own legal system. The justices must be crazy.

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      • `dry' well says:

        Hidden due to low comment rating. Click here to see.

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      • raina says:

        Someone asked why people don’t just buy non-patented seed. I think you answered their question. The farmers are screwed if they do, screwed if they don’t. Policies need to be re-visited to assess the priorities of the state of food in the USA. Monsanto continually screws over farmers, whether they are customers or not. What kind of company does that? Soon, there won’t be a farmer left to plant anything! By allowing Monsanto to continue to abuse every farmer with some dirt in their yard, it sends the message that the legal system and the government would rather protect a corporation and a patent then the well-being of the nation. Patents on living things should not be allowed and I don’t know why it ever was.

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      • Michael says:

        The self replicating aspect is interesting. Why doesn’t a farmer countersue for having Monsanto’s product “trespass” on their property? What if Bowman had bought, grown and sold his soybeans as special (non-GMO) to people who don’t like Frankenfood and Monsanto seeds contaminated them? I would think the damages would be high.

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    • Brian says:

      You can certainly sell the beans. If you couldn’t sell them then I wouldn’t make much of a living growing them on my farm every year. What you can’t do per the tech agreement is save the seed and plant a subsequent crop. My opinion is if you don’t like the contract, then find a source of seed that lets you save them. Here’s a post I wrote on the matter of tech agreements and in it you’ll find a copy of my Monsanto tech agreement. http://thefarmerslife.wordpress.com/2012/02/27/i-occupy-our-food-supply-everyday/

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      • Nick Naranja says:

        And my argument would be that he didn’t save the seed. He bought seed that had been sold to a grain depot for animal feed (I suppose).

        I wish that this was not a soybean farmer going to court. I could see a major case for corn that would bring down their corn business. Corn pollen can travel far. If I was a farmer who saved seed GMO pollen could blow in one year and make some of my corn more resistant to insect damage. I could then select this corn without knowing it had been contaminated. I am waiting for a strong contamination lawsuit.

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      • Brian says:

        Nick, corn pollen can travel but there are things neighbors can do to prevent unwanted pollination. They can set different planting dates or use different maturities to ensure both crops are not pollinating at the same time. Corn has a very short window for pollination as compared to soybeans.

        Thumb up 1 Thumb down 1
    • Travis says:

      See the Ship of Theseus. It’s an interesting question/paradox but one which isn’t very well addressed in patent law. AFAIK it’s often brought up in patent courses to inspire debate, because I don’t think there is a good answer to the question.

      Thumb up 2 Thumb down 0
    • gevin shaw says:

      “Why doesn’t a farmer countersue for having Monsanto’s product “trespass” on their property?”

      The courts support Monsanto in these exchanges. Farmers lose for “stealing” Monsanto’s genes rather than win on the contamination argument.

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  7. Philippe says:

    The article doesn’t mention the fact that Bowman used Roundup on the 2nd (“bulk”) crop. Which illustrates that he knew he was getting mostly Roundup Ready seeds.

    This doesn’t mean what he did was wrong, it just means he knew exactly what he was doing. His actions were intentional. He didn’t get sued just because he happened to get some Roundup Ready seeds, he knew he was going to get them. But this is also why this is a patent lawsuit, not a breach of contract suit.

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  8. Brian says:

    Hello. I’m an Indiana soybean farmer as well. Bowman’s second crop seed may have very well been cheaper, but I grow soybeans after wheat as well. I can buy seed right from a seed dealer that is cleaned and pure and may have disease and insect fighting seed treatments for a heavy discount when the time comes. As I explain in my own blog post (http://bit.ly/ZnyZ8c) it’s my opinion that the bin run seeds Bowman uses make growing his second crop even riskier.

    Also as mentioned by other comments it sounds like he was actively selecting for Roundup Ready seed by spraying glyphosate on these fields. Also this case goes back several years to when RR soybeans probably weren’t dominating the market. An interesting point. You can sell patented seed all you want, but you can’t keep it to plant another crop. Is he a bad guy? I don’t know. Probably not, but I do think he was pushing the limit and probably exceeded it. I’m curious to know if the elevator was aware of his intent with the seed. Also of note is that he lost the case in lower courts.

    For anyone interested in seeing what a technology use agreement I’ve scanned a copy of my own for anyone to see for themselves. Read through the post and you’ll find the link to a PDF file. http://bit.ly/HQYrvq

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