Does Monsanto own all future generations of genetically modified
seeds that it sells? The Missouri-based agribusiness giant wants
farmers to pay a royalty to plant any seed that descended from
a patented original. The legal decision has ramifications for
other patented "inventions" that reproduce themselves
like strands of DNA.
The US Supreme Court appeared to side with Monsanto in oral
arguments heard this past February in a lawsuit that the world's largest seed company has brought
against Vernon Hugh Bowman, a 75 year old farmer in Indiana,
who grows corn, soybeans and wheat on a small farm of 600 acres
(242 hectares).
The impending court decision, which will probably come this
June, has sparked alarm among consumer advocates.
"Judges don't understand agriculture," says Bill Freese,
science policy analyst for theCenter
for Food Safety, a Washington DC based watchdog group. "The
Monsantos of the world have everyone convinced through a massive
misinformation campaigns that biotech crops are essential to
feed the world, and patents are necessary for biotech crops.
So there's this patina of virtuous innovation when in fact what
biotechnology is really used for primarily is to develop pesticide-promoting
crops."
The crop in question is Roundup Ready soybeans, which are
genetically-altered to be resistant to glyphosate, the main
chemical in Roundup, a pesticide also manufactured by Monsanto.
Bowman first fought back when Monsanto sued him in 2007 for
patent infringement. At the time, Bowman was a regular Monsanto
customer. Like the 275,000 other US farmers who buy "Roundup
Ready" seeds, Bowman bought his seeds from Monsanto and
signed a contract stating that he would not save Roundup seeds
to replant. He didn't.
But from 1999 to 2007, in addition to his usual order of Roundup
Ready soybeans for seed, Bowman purchased commodity-grade soybeans,
called "commodity grain," from a local grain elevator
where farmers like himself sell their crops. Typically, commodity
grain is used for animal feed. Bowman, however, decided to use
the commodity grain - a mix comprising of many different varieties
of soybeans including some Roundup Ready seeds - to plant a
second, lower yield soybean harvest later in the season.
"What I wanted was a cheap source of seed," Bowman told
National Public Radio, a US network.
Roundup Ready was first marketed in 1996, and it was a hit with
farmers in the US, the largest producer of genetically modified
food in the world. These days, more than 90% of US-grown soybeans
are Roundup Ready, Monsanto said in court documents. As a result,
organic farmers say, it's getting harder to find diverse strains
of traditional, heirloom soybeans.
Therefore, it's no surprise that some of the soybeans Bowman
took home from the grain elevator contained Monsanto's patented
soybeans. For eight years, Bowman planted the commodity-grade
soybeans for his second harvest, sprayed Roundup on them, harvested
the plants that grew and kept the seeds they produced to plant
later. It's these "third generation" seeds that are
at the heart of the Supreme Court case now.
Bowman saw nothing wrong with what he was doing. "All through
history we have always been allowed to go to an elevator and buy commodity grain
and plant it," he told the New York Times.
Not any more, if companies like Monsanto who control most of
the global commercial seed market, have their way. The big seed
companies use a strategy to attack seed savers that consists
of three stages: "investigations; coerced settlements;
and, if that fails, litigation," says the Center for Food
Safety.
To date, in the US, Monsanto has sued 410 farmers and 56 small
farm businesses for alleged seed patent violation. Monsanto
has won every single case. The company was awarded nearly $24
million from just 72 of those judgments, the Center for Food
Safety found.
Additionally, Freese estimates that as many as 4,500 small farmers
who could not afford legal representation have been forced to
accept out-of-court settlements. He estimates, based on Monsanto's
documents, that those farmers paid Monsanto between $85 and
$160 million in out-of-court settlements.
"As early as 2003, Monsanto had a department of 75 employees
with a budget of $10 million for the sole purpose of pursuing
farmers for patent infringement," the Center for Food Safety
stated in a new report, "Seed Giants vs. US Farmers." "Agrichemical companies
earn billions of dollars each year, and farmers cannot possibly
compete against such resources."
"Patents are necessary to ensure that we are paid for our
products and for all the investments we put into developing
these products," the company states on its website in its
defense. "Monsanto invests more than $2.6 million per day
in research and development that ultimately benefits farmers
and consumers. Without the protection of patents, this would
not be possible."
The Center for Food Safety wants federal, state and local governments
to work together to regulate the biotechnology industry, using
a law passed by the U.S. Congress in 1970 as a guideline. The
42 year old Plant
Variety Protection Act allowed intellectual property
laws to be applied to new and distinct plants.
But it had an exemption for farmers to save seeds of such plants
and replant them so long as they do not resell the seed. Plant
breeders are also allowed to use protected seed for further
breeding work. The law was designed to protect one seed company
- say Monsanto - from another - like DuPont. This law did not
view farmers as competitors to companies.
In 2001, the U.S. Supreme Court ruled that non-hybrid plants
could be patented. The final
decision was written by Justice Clarence Thomas, who incidentally
worked as an attorney for Monsanto in the 1970s. Since then,
courts have tended to side with seed companies suing for patent
infringement.
"This (Plant Variety Protection Act) has been largely sidelined
now by the patent system," says Freese. "Now companies
with patents have this inordinate control over seeds, and they
can criminalize seed saving.
Bowman spent $31,000 of his own money on legal fees before a
law firm agreed to defend him for free. If Monsanto wins the
case against him, he'll have to pay almost $85,000 to the corporation,
which made $7 billion in profits in fiscal year 2012.
Bowman's legal argument rests on a 150-year old Supreme
Court common law known as the "patent exhaustion doctrine."
His lawyer, Mark P. Walters, argued that Monsanto's patent did
not apply to seeds descended from Roundup Ready soybeans that
were then sold to a grain elevator and mixed with other soybeans.
Monsanto contended that Bowman, by growing and saving seeds
from the commodity soybeans he bought from the grain elevator,
was making "copies" of the original, patented Monsanto
product.
Two lower courts agreed with Monsanto. In 2009, district court
in Indiana awarded the company more than $84,000. The Court
of Appeals for the Federal Circuit, which specializes in patent
law, upheld the decision in 2011.
In October 2012, the Supreme Court agreed to hear the case,
despite objections made by the Obama administration, which said
the judges should let the previous rulings stand. The US government
filed a friend of the court brief in support of Monsanto, stating
that "the Court's decision could also affect the enforcement
of patents for man-made cell lines, DNA molecules, some nanotechnologies
and other technologies that involve self-replicating features."
Not surprisingly, the Biotechnology Industry Organization, the
Business Software Alliance, Intellectual Property Owners Association
and other industry and research groups also filed friend of
the court briefs on Monsanto's side.
On February 19, Supreme Court justices heard both sides of the
case.
"Without the ability to limit reproduction of soybeans
containing this patented trait, Monsanto could not have commercialized
its invention, and never would have produced what is, by now,
the most popular agricultural technology in America," Monsanto's
lawyer and former US solicitor general, Seth P. Waxman, told
the court.
Waxman was allowed to talk uninterrupted at length,
"which is usually a sign of impending victory," the
New York Times reported.
In contrast, the justices fired a volley of skeptical questions
at Bowman's attorney, Mark P. Walters. When Walters argued that
Monsanto's patent didn't apply to subsequent generations of
seeds after the initial sale, Antonin Scalia, another judge,
interrupted him.
"Why in the world 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?" Scalia asked.
Later, Walters argued that Bowman was "making use"
of the commodity grain that he bought on the open market when
he planted it, not making a copy of an original Monsanto seed.
He was rebuked by Stephen Breyer, another of the judges.
"You can feed it to animals, you can feed it to your family,
make tofu turkeys," Breyer interjected. "But... you
can't pick up those seeds that you've just bought and throw
them in a child's face. You can't do that because there's a
law that says you can't do it. Now, there's another law that
says you cannot make copies of a patented invention."
"If the concept is the sale of a parent plant
exhausts the patentholder's rights... we would have to go all
the way back to the very first Roundup Ready plant that was
created," said Melissa Arbus Sherry, the lawyer representing
the Obama administration. "Every single Roundup Ready seed
in existence today is the progeny of that one parent plant and...
that would eviscerate patent protections. There would be no
incentive to invest, not just in Roundup Ready soybeans or not
even agricultural technology."
Walters believes there is still a possibility that
the Supreme Court could reverse the decision or send the case
back to the lower courts for retrial. He said three of the justices
appeared to sympathize with the idea that a farmer ought to
be able to sell, plant or grow new seeds from ones he buys on
the open market.
"There are many interests: biotech, seed companies, large
and small farmers. They're not aligned," Walters told CorpWatch.
"Small farmers are not very well organized. They're not
a strong voice in Congress. Right now one company with a particular
stake is trying to make a case based on a set of particular
facts."
Both Walters and Freese agree that in today's political climate,
it would be an uphill battle to pass legislation that would
regulate the powerful biotech industry. Last year, Monsanto,
other agribusiness and food companies spent more than $45 million
to defeat a proposition in California that would have required
labels on some genetically modified foods sold at stores.
Meanwhile, Bowman has to drive out of the state of Illinois
- to Ohio - in order to find cheap, non-GMO commodity
soybeans he can plant without the threat of a patent infringement
suit. Every time, he does this, he passes numerous grain elevators,
all of which brim with soybeans.
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