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Look At Precedents for Bowman v. Monsanto
Buried in all the public relations flak flying out of both sides of Bowman vs. Monsanto are previous court cases establishing precedence that could significantly impact the case. Bowman v. Monsanto is being argued today before the U.S. Supreme Court.
Monsanto asserts that Vernon Bowman, a Sandborn, Indiana, farmer, violated seed patent laws by planting commodity soybean seed he purchased from a nearby elevator. Lower courts ruled in favor of Monsanto before the Supreme Court agreed to hear the case last fall.
In 2008, the U.S. Supreme Court heard Quanta Computer v. LG Electronics. This established precedence that although patent owners can place sales conditions on a product, patent rights end once the initial sale occurs.
However, a 2001 Supreme Court case, J.E.M. Ag Supply v. Pioneer Hi-Bred International, found patented soybeans are eligible for utility patent protection, says Gary Baise, an attorney with Olsson, Frank, Weeda, Terman, Matz PC in Washington, D.C. Baise, who is also involved in an Illinois farming operation, helped write a brief for the American Soybean Association (ASA) supporting Monsanto’s position.
The argument over Bowman v. Monsanto is how far a seed patent can extend. From 1999 to 2007, Bowman double-cropped soybeans in early summer with commodity soybeans he purchased from a grain elevator.
“The second-season seeds ended up having the (Roundup Ready) technology in them, and he reused them,” says Erika Eckley, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University.” Monsanto sued him for planting commodity seed for the second crop. The Bowman side is making the argument that seed companies can’t control the patent beyond the additional sale.”
If the Supreme Court rules in favor of Bowman, seed companies are concerned they will be unable to protect their patents, says Eckley.
A 1980 U.S. Supreme Court case, Diamond v. Chakrabarty, started the ball rolling for seed and trait industry patents. Neil Harl, Iowa State University emeritus professor of economics, referred to this at a 2010 U.S. Department of Justice and USDA public workshop examining competition issues in agriculture at Ankeny, Iowa.
“In 1980, the Supreme Court decided a key case (Diamond v. Chakrabarty) to allow patenting of a life form for the first time,” he stated. “At no point did Congress express any oversight.”
From then on, it was off to the races, forming the basis for trait development to mergers to seed industry concentration.
There’s a difference between Quanta Computer v. LG Electronics and Bowman v. Monsanto, says Baise.
“LG v. Quanta did not cover the replicating issue,” he says. Goods like a tractor or television do not keep reproducing into succeeding generations like seed.
“Because closed pollination (with soybeans) is occurring, you are making a brand new article (each time), and that is why the patent applies,” he says. “Quanta did not address this.”
Nixing patent protection after the first point of sale would discourage seed companies from investing in future technology. “J.E.M. Ag Supply vs. Pioneer made it very clear that patented soybeans are subject to patent laws,” he says.
Baise is concerned that the Supreme Court’s make-up may be negatively focus against Monsanto and its allies.
“Every justice up there is Yale/Harvard,” he says. “The only guy with a scintilla of exposure to ag is (Justice) Clarence Thomas, who worked as a lawyer with Monsanto. (Thomas, who has not recused himself from the case, worked as an attorney for Monsanto from 1977 to 1979.)
With this in mind, Baise wrote a legal brief for ASA stressing agricultural terms like pollination and how patent protection has sparked benefits including seed and trait innovation.
“They (Monsanto) need to get their story out there,” says Baise. “This (Bowman) is a very sympathetic character.”
However, he says this masks the negative impact a ruling against Monsanto could have on the agricultural industry. If the Supreme Court rules for Bowman, Baise says an immediate impact may be 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.