This article first appeared in the St. Louis Beacon, May 13, 2013 - Vernon Bowman's challenge to Monsanto Co.'s patent on its Roundup Ready soybean seeds was billed as a David v. Goliath contest. Goliath won and won big.
The Supreme Court ruled unanimously on Monday that Bowman, a 75-year-old soybeans farmer from southern Indiana, had violated Monsanto's patent on its genetically engineered soybean seeds. Bowman had used commodity seeds he bought from a local grain elevator to make new seeds with Roundup Ready traits.
Justice Elena Kagan said that Monsanto would get "scant benefit" for its invention if farmers like Bowman could use seeds from grain elevators to make new seeds with Roundup Ready properties. Farmers would "need only buy the seed once" and could multiply the seeds "ad infinitum -- each time profiting from the patented seed without compensating its inventor....
"If simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention," she wrote.
In Monsanto's news release, David F. Snively, executive vice president, said the decision "ensures that longstanding principles of patent law apply to breakthrough 21st-century technologies that are central to meeting the growing demands of our planet and its people. The ruling also provides assurance to all inventors throughout the public and private sectors that they can and should continue to investing in innovation that feeds people, improves lives, creates jobs and allows America to keep its competitive edge."
The Center for Food Safety in Washington, D.C., disagreed, saying in a release: “This decision is a setback for the nation’s farmers,” said executive director Andrew Kimbrell. “The food movement will not be stopped by one misguided ruling. CFS is committed to protecting farmers from patent persecution and furthering the goals of seed independence and creating a more sustainable agricultural future.”
The legal question was "patent exhaustion," the concept that the sale of a patented product exhausts – ends – the patent rights of the seller. Purchasers can use the products themselves or resell them.
Kagan said that Bowman was free to use the soybeans he bought from the local grain elevator for food or to feed to animals. But he was not free to use them to make exactly the same product that Monsanto had developed at great expense.
She likened the case to buying a patented machine. The purchaser could use the machine to produce products. But he couldn't copy the machine and sell the copies to others.
Kagan wrote that it is well-settled law that patent exhaustion "does not extend to the right to make a new product."
Bowman had come up with an ingenious way to try to get around Monsanto's patent on the soybean seeds. He planted two crops each growing season. He was a loyal customer of Roundup Ready seeds for the first of the two crops -- the one most likely to succeed.
But for the second, more marginal crop each season, he bought commodity seeds from the local grain elevator. Everyone else bought those seeds for food, but Bowman planted them suspecting that most would have Roundup Ready traits. He was right and for the next seven years he planted seeds he saved from this second crop to grow yet another crop of seeds.
Two Monsanto men showed up at his tool shed one day inquiring into how he could produce so much soybeans on the amount of seed he was buying. Bowman told them what he was doing and "asked them what in the world was wrong with it because I had been telling farmers over the years what I had been doing."
Monsanto sued claiming Bowman's practice violated its patent rights. Bowman argued that the patent rights had been exhausted after Monsanto sold the seeds for the first time. A lower court judge sympathized with Bowman but said he had to enforce the law and ordered him to pay more than $84,000. A federal appeals court agreed.
Bowman made a couple of arguments in the Supreme Court. One was that he was just doing what farmer had always done in history, saving and planting seeds. Monsanto should not be able to interfere with the "normal way" farmers use seeds.
Bowman also maintained that he did not reproduce the seeds, but rather the seeds reproduced themselves.
Kagan responded, "We think that blame-the-bean defense tough to credit." Bowman was "not a passive observer of his soybeans' multiplication," she wrote, noting that he had come up with the "novel way" of reproducing Roundup Ready seeds.
"Bowman planted Monsanto's patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article," she wrote. "Patent exhaustion provides no haven for that conduct."
Kagan cautioned, however, that the court's decision was "limited" and would not necessarily cover all kinds of self-replicating technology.
Neither Bowman nor his lawyer, Mark P. Walters, could be reached on Monday. But in an interview before the oral argument last February, Bowman predicted he would get the last laugh even if he lost. He went broke a few years ago; he is getting pro bono assistance from a bar association involved in intellectual property law cases. If the justices rule against him, he said then, about all Monsanto could get to satisfy its judgment is a little rural post office he owns near his house. And that's worth only about $4,000.
