Wednesday, October 10, 2012

Hide yo' wife, hide yo' kids; Monsanto is trolling the bridges near and far!

The U.S. Supreme Court announced last Friday that it would hear an appeal brought by an Indiana farmer, Vernon Bowman, against Monsanto’s claim that he had infringed Monsanto’s patent rights by reusing its herbicide-tolerant seeds. This case, likely to be heard next January or February and eventual outcome to be expected sometimes next June, will have an enormous impact on Genetically Modified Organisms (“GMO”) patent laws and how big agri-business is done.

On center stage of the Bowman v. Monsanto case is Monsanto’s Pioneer Hi–Bred® brand seed containing the Roundup Ready® technology. The seeds were sold to Bowman, a farmer in Knox County, Indiana, sometime in 2002. Bowman bought the seeds from a Monsanto seed producer legally each year and under the Monsanto sales contract, Bowman is not allowed to save any seeds from the crops grown from these Pioneer Hi-Bred seeds.

But Bowman did not save the seeds from the purchased lot of seeds; he complied with the seed purchase agreement, with its savings restrictions as Monsanto authored it with their army of lawyers. What Bowman did was much more clever and laborious; here is where the case warrants a Supreme Court hearing.

For many years, Bowman would grow his first crop of the season by the Monsanto seeds he had bought. After the first harvest, he would buy commodity seeds from local grain elevators and plant a second crop. Because Monsanto had allowed farmers to sell their Pioneer Hi-Bred seeds to these local grain elevators and the local grain elevators would mix the Pioneer Hi-Bred seeds with commodity crop seeds, Bowman’s purchase for a second crop would include both Pioneer Hi-Bred seeds and commodity seeds. Bowman realized that if he sprayed the plants with Roundup, he then would be able to identify the herbicide resistant plants when they didn't die. Bowman then saved those seeds for planting and he is able to get around the Monsanto patent claims since he had not paid Monsanto or signed its licensing agreement for the purchase of the second commodity crop seeds.    

Technically, Monsanto could not claim Bowman had violated the terms of use of their Pioneer Hi-Bred seeds so Monsanto sued Bowman for violating its patent rights—rights which Monsanto claims go beyond the term of any particular agreement it may or may not have with any farmer. As Monsanto saw it, its patent rights apply to all uses of its products, in perpetuity. Both the federal district court and the federal appellate court agreed with Monsanto and ordered Bowman to pay over $80,000 in damages. Monsanto Co. v. Bowman, 657 F.3d 1341, 1343-46 (Fed. Cir. 2011) cert. granted, 11-796, 2012 WL 4748082 (U.S. Oct. 5, 2012).

However, this ruling seems inconsistent with the Supreme Court’s 2008 decision upholding the doctrine of patent exhaustion, which “limits the patent rights that survive the initial authorized sale of a patented item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, (2008). But that’s exactly what Monsanto wants to claim, that its patent rights survive the initial authorized sale. So, in Bowman’s case, even if he had legally bought seeds that were saved from a commodity seed market which Monsanto itself do not have any problems with, Bowman still can’t actually plant them because the seeds are patented!

If Monsanto receives the exemption from the doctrine of patent exhaustion, it would become the ultimate patent troll.

“Hide yo' wife, hide yo' kids; Monsanto is trolling the bridges near and far!”

It’s hard to imagine a world where Monsanto would have such awesome power. It would be able to extract fees from anyone anywhere who grows a plant with the company’s genetic material. Of course if Monsanto gets its way, the logic of their patent rights could extend to drug companies and other sectors of the economy. Imagine that you had received a new genetic treatment for some rare disease, but later find out you will have to pay the drug company a license fee because you had passed the genetic material to your children; then your children’s children. Where does that end?

Getting back to reality for the moment, I hope the Supreme Court puts some kind of limit on Monsanto’s power. But there is a deeper issue not addressed. Whether Bowman wins or Monsanto prevails and marches us down the slaughterhouse, we still have not answer the question if GMOs are so desirable that we would continue its monotheistic presence in our food industry. Clearly the villain in our case is Monsanto and we would love to herald Bowman a savior and champion for the cause, but isn't it ultimately up to the farmers to choose how they should farm their land and whether they ought to depend on just one single crop, genetically modified, rather than growing bio-diverse crops and sustain themselves from single crop failure or genetic contamination  What if instead of trying to figure out how to game the Monsanto GMO system, Bowman had decided otherwise to spend his money and energy on becoming a different sort of farmer? But those questions are not for the courts to answer, the media would not have news to make, and lawyers would not be rich. Only if such a world is one we acknowledge.

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