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The Supreme Court, Patent Law, and Your Dinner Table

February 18, 2013
Vernon Hugh Bowman on his farm.

Vernon Hugh Bowman on his farm.

The U.S. Supreme Court is today hearing oral arguments in Bowman v. Monsanto. The case pits Vernon Hugh Bowman against biotech giant Monsanto. At issue is the scope of patent protection afforded Monsanto’s Roundup Ready (glyphosate resistant) soybeans.

The Bowman case is one of two cases addressing intellectual property rights on the Supreme Court’s calendar this session. The other, Association for Molecular Pathology v. Myriad Genetics, is slated for oral arguments on April 15 and addresses the question of whether or not human genes can be patented. The Bowman case has generated considerable interest, with more than twenty amicus curiae (friend of the court) briefs filed.

The case arose when Bowman, a farmer who already grows Monsanto’s patented Roundup Ready soy on most of his farm, decided to purchase supplemental late season soy to grow on land already dedicated to corn production. Because late season soy is more risky than early season soy, Bowman decided not to purchase Roundup Ready varieties and instead bought livestock feed soy from a local granary. That feed soy was mixed lot. But because approximately 80 percent of all soy grown in the United States is Roundup Ready, it contained Roundup Ready and other varieties in the mix. Monsanto sued Bowman, alleging he had violated Monsanto’s patent.

Now, to be clear, Monsanto does not claim that Bowman used the technology in the Roundup Ready seeds. He did not spray glyphosate (Roundup) on the fields. He did not benefit from the technology. Correction: Monsanto’s suit did indeed claim that Bowman sprayed his fields with glyphosate, benefiting from the technology. Thanks to argylesock who blogs at Science on the Land for the correction. Monsanto won its initial suit, and Bowman was ordered to pay Monsanto $84,456 in damages.

In its decision, the lower court ruled—consistent with earlier decisions—that the patent follows the gene. That is, in self-replicating technologies, ownership follows the genetic line regardless of where it is expressed. In this sense, the decision of the lower court echoes the (in)famous decision of the Canadian Supreme Court in Monsanto Canada v. Schmeiser (2004), in which the Court ruled that Percy Schmeiser, a Canadian farmer, had violated Monsanto’s patent on Roundup Ready canola even though Schmeiser claimed the gene had entered his fields without his knowledge and had contaminated his own variety of canola developed on his farm over fifty years.

The stakes of the current case are incredibly high, and the arguments presented have far reaching scope for food production. Bowman’s case rests on the doctrine of patent exhaustion, which asserts that one a patent is exercised through sale, subsequent sales are not subject to restriction by the patent holder. If you purchase a (patented) iPhone, for example, you are paying royalties to Apple. But if you later decide to sell that iPhone, Apple has no rights to make patent claims over that sale. Their patent is exercised only in the original sale.

If Bowman’s argument holds, Monsanto claims its business model would be destroyed. Farmers would be free to purchase seed from Monsanto once, and then grown subsequent generations of that seed royalty free.

The challenge here is somewhat unique, arising from the self-replicating nature of the seed. Unlike the iPhone, which exists as a single item, the very nature of the seed is to reproduce and multiply, passing the genetic information contained in it on to subsequent generations. To date, the courts have taken a very broad view of patents in this area, maintaining that the patent holder’s rights extend from one generation to the next. Ownership, in other words, extends not to the individual iPhone, but to all iPhones everywhere for the life of the patent.

The Court’s decision in Bowman v. Monsanto will not be released until later this spring. But, given the history of the Court’s broad reading of intellectual property rights, Bowman likely faces a steep uphill climb in his assertion. As Adam Cohen notes,

This case gives the court an opportunity to rein in the growing use of patents to protect genetically engineered crops and other life forms — but the court may well use it to give this trend a powerful new endorsement.

My bet is on the latter.

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3 Comments
  1. Hello, I come to this blog post in May 2013, after the Supreme Court found in favour of Monsanto. You’re mistaken when you say, ‘Monsanto does not claim that Bowman used the technology in the Roundup Ready seeds. He did not spray glyphosate (Roundup) on the fields. He did not benefit from the technology.’

    In fact, he did spray glyphosate on his ‘second’ (late season) crop. He then used seeds from the ‘second crop’ to replant the next year. http://www.innovationatstake.com/about-bowman-v-monsanto/case-timeline/ In that sense, he performed selective breeding on his ‘second crop’.

    He’d planted seeds from a mixed batch from the granary. After he selected the plants which were resistant to glyphosate, their beans (‘progeny seeds’) carried the resistance gene. He replanted those seeds, benefiting from the technology.

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