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Supreme Court rules for Monsanto in patented seed case

Gil Gullickson 05/14/2013 @ 7:18am Crops Technology Editor for Successful Farming magazine/Agriculture.com

If you’re ever tempted to save patented seed for replanting the next year, don’t. That’s the case even if you buy patented commodity seed from your elevator.

This week, the U.S. Supreme Court ruled 9-0 for Monsanto in its lawsuit against Vernon Bowman, an Indiana farmer who double cropped patented Roundup Ready soybean seed.

Different twist

Bowman v. Monsanto was a twist on patent infringement cases that Monsanto has prosecuted in the past. Rather than buy patented seed directly from Monsanto and save it for the next year, Bowman bought commodity seed from a local elevator and planted it as double-cropped soybeans after wheat from 1999 to 2007. Since well over 90% of seed planted in the U.S. is herbicide-tolerant, it’s likely the majority of this seed was Roundup Ready, the patented herbicide-tolerant trait.

Bowman continued to buy patented seed for soybeans that he planted as his first crop at the normal spring planting time. He also signed and complied with agreements for this seed, promising he would not save it.

Double cropping is risky. If rains and favorable temperatures result, planting soybeans in mid-summer can result in good yields. If drought strikes, though, the crop can be a wipeout. That’s the reason Bowman didn’t want to stick a lot of money into seed.

Monsanto and others saw it differently, though.

Gary Baise, an attorney with Olsson, Frank, Weeda, Terman, Matz PC in Washington, D.C. who also is involved in an Illinois farming operation, helped write a brief for the American Soybean Association (ASA) supporting Monsanto’s position. Monsanto and its allies argued its patent on this seed had not expired in this case.

Had the Supreme Court ruled for Bowman, Baise says an immediate impac would have been more farmers saving seed and not paying for patented technology.

“There is a real risk for a lot of dollars lost that would otherwise go into research,” he says.

In the end, justices sided with Monsanto that’s summed up in the ruling’s concluding statement. “In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the re- ward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct. We accordingly affirm the judgment of the Court of Appeals for the Federal Circuit.”

The ASA supported the decision.

“By ruling unanimously in favor of maintaining the integrity of intellectual property laws, the Supreme Court has ensured that America’s soybean farmers, of which Mr. Bowman is one, can continue to rely on the technological innovation that has pushed American agriculture to the forefront of the effort to feed a global population projected to pass 9 billion by 2050, says Danny Murphy, ASA president in a prepared statement.

“Intellectual property protection sparked a sea change in investments by public and private seed breeders into improved seeds for soybeans and other crops. The Supreme Court’s decision today recognized that if you take away the incentive for those entities to strive for a better seed, they won’t make those investments and farmers eventually won’t have the benefits of improved seeds.”

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