What's At Stake In the Monsanto Dispute Over GM Seed?

Farm Futures blogger Gary Baise takes a look at the key issues

Published on: Feb 20, 2013

Editor's note: This commentary first appeared in Gary Baise's 'Defending Agriculture' blog on October 25, 2012. To read the original post, click here.

On December 20, 2011, Knox County, Ind. farmer Vernon Bowman had his lawyers from New York City and Seattle file a petition requesting the U.S. Supreme Court to hear his case on planting "commodity" soybeans purchased from a local elevator. The soybeans in question were glyphosate tolerant.

Bowman is challenging two lower court decisions and losses regarding his planting of so-called "commodity seeds" to raise a second soybean crop each year. Monsanto believes Bowman is using its patented Roundup Ready seeds purchased from the local elevator. Bowman disagrees.

Farm Futures blogger Gary Baise takes a look at the key issues
Farm Futures blogger Gary Baise takes a look at the key issues

Many articles have been written about the legal dispute between Monsanto and Mr. Bowman. On the surface, the case appears to involve an extremely arcane set of legal issues. See if you can make heads or tails of this language.

Bowman's lawyers advised the Supreme Court that the question in this case is whether patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale.

In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose – namely, for planting. The question presented is: whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale, and (2) by creating an exception to the doctrine of patent exhaustion or self-replicating technologies.

Indeed, you may need to be the Supreme Court to be able to understand what Mr. Bowman's lawyers are trying to raise.

How much control?

The Solicitor General's Office of the U. S. Department of Justice, not known to have a lot of agricultural background, presented the question in a fashion the average person can understand, which is "Whether the authorized sale of one generation of a patented plant seed exhausts a patentee's right to control subsequent generations of that seed."

Pretty simple. Does Monsanto's patented GMO technology travel from the soybean seed in the ground to the soybeans in the pods?  If so, Monsanto's technology travels to the new soybeans created on the stalk or plant stem.

Bowman began purchasing Roundup Ready genetically modified (GMO) soybeans and signed the Monsanto Technology Agreement, starting in 1999. He followed the Technology Agreement which among other items requires anyone using Monsanto gene technologies to use the seed for a commercial crop for a single season - not save any of the crop for replanting and not to use the seed for crop breeding. He followed Monsanto's rules.

But, Mr. Bowman engaged in another practice - growing a second soybean crop presumably on  harvested wheat ground. He did not want to use the more expensive Monsanto GMO soybean seeds for the riskier second crop, so he purchased "commodity seed" from a local grain elevator.

Mr. Bowman claimed Monsanto's Roundup Ready GMO patent did not apply or extend to soybean seed purchased from the elevator because he was planting what he called "second generation" seeds sold to the elevator. Monsanto disagreed.

For soybean producers, the question is not complicated. If you want to plant non-GMO soybeans, such soybeans are available for purchase. Bowman appears to have known that in Indiana, 94% of soybeans planted are GMOs.

Bowman determined, through his own testing, that he could apply glyphosate to his second crop of soybeans, which flourished. Now he does not want to pay Monsanto its technology fee, and he got caught.

Stripping away all the legal arguments, this case is pretty simple. Monsanto has a patent and the soybean seed carries this patent forward in each new seed created by the original seed. In fact, on average, if a producer has at least 30 pods or more per soybean plant, and those pods have 3 beans in each pod, that is approximately 90 beans per plant. Assuming 142,000 soybean plants per acre, (what I planted this year) that is roughly 12 million soybeans to the acre each with Monsanto's technology embedded in it.

Monsanto says every individual patented bean carries its genetic material. Bowman claims that once a patented item, such as a tractor, is sold, the patentees cannot prevent the farmer from using the tractor in any way he chooses. Correct! However, what Bowman does not seem to understand is that if the farmer attempted to reproduce the identical tractor and sell it, he could not do so without infringing upon a lot of patented items.

Bowman knowingly reproduced Monsanto's patented seeds to the tune of millions of times and profited without paying Monsanto for its intellectual property and hard work. Bowman created an advantage for himself by not paying his fair share and that is unfair to all producers who play by the rules. In my opinion, Mr. Bowman should lose the case.

Gary H. Baise is an Illinois farmer and trial attorney specializing in agricultural and environmental issues at the law firm Olsson Frank Weeda Terman Matz PC.