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. 


Seminymous Coward

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.

Ken Smith Jr

“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.

J1

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?

Sociologist at-large

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

Nick Naranja

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.

Ryan

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.!

Jon S

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.

Brandon

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

João Parreira

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.

Philippe

> “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?

Mike

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.

`dry' well

You cannot cross pollinate something for which there is no equivalent.

Philippe

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.

Brian

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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Travis Idol

Two comments.
1) The GMO patent protections being demanded by Monsanto and the companies are "patently" different than the traditional plant variety protections afforded traditional plant breeders. The offspring (F2) of a hybrid plant (F1) do not generally "breed true", meaning they are not genetically identical to the parent. While reselling the original seed is an established violation of intellectual property rights, saving seed (F2) produced by the GMO plant (F1) is not, in my mind, any different than for any other hybrid variety. To claim protection over specific sequences of a genome leads me to Comment 2.
2) The argument that specific genetic sequences can be patented admits that genetic engineering is fundamentally different than traditional breeding, which is the opposite of what GMO defenders tend to argue in the abstract. Traditional variety protection is of whole organisms that embody a distinctive genotype and phenotype defined by specific breeding techniques. It acknowledges that life reproduces, mixes up genotypes, and produces new kinds of offspring; in short, that life "gets away from you". To try to contain a specific genetic sequence through patent protection is to deny and defy the natural course of things. And in that sense, GMOs as a biological-business-legal model is patently "unnatural".

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Brian

Selling the seed is not a violation of the agreement that would be signed when purchased seed being discussed in this case. I should say selling as a commodity. Planting that seed for a subsequent crop is a violation. Soybeans will be true to the parents since they are self pollinating.

Syd

In the strictest biological sense, you don't 'copy' a plant, you copy genes. Replication takes place at the sub-organismal level, all the way down in the DNA. This type of copying happens regardless of the fate of the beans themselves - plants grow by replicating and dividing their cells.

I have no opinion on the ethics of the argument, but as a biologist I think that the current laws simply don't cope well with the realities of the genetic world.