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Patented Seed Use Yields High Court Tussle

Sandborn, Ind. — Farmer Hugh Bowman hardly looks the part of a revolutionary who stands in the way of promising new biotech discoveries and threatens Monsanto’s pursuit of new products it says will “feed the world.”

“Hell’s fire,” said the 75-year-old self-described “eccentric old bachelor,” who farms 300 acres of land passed down from his father. Bowman rested in a recliner, boots off, the tag that once held his Foster Grant reading glasses to a drugstore rack still attached, a Monsanto gimme cap perched ironically on his balding head.

“I am less than a drop in the bucket.”

Yet Bowman’s unorthodox soybean farming techniques have landed him at the center of a national battle over genetically modified crops. His legal battle, now at the Supreme Court, raises questions about whether the right to patent living things extends to their progeny, and how companies that engage in cutting-edge research can recoup their investments.

What Bowman did was to take commodity grain from the local elevator, which is usually used for feed, and plant it. But that grain was mostly progeny of Monsanto’s Roundup Ready beans because that’s what most Indiana soybean farmers grow. Those soybeans are genetically modified to survive the weedkiller Roundup, and Monsanto claims that Bowman’s planting violated the company’s restrictions.

Those supporting Bowman hope the court uses the case, which is scheduled for oral arguments later this month, to hit the reset button on corporate domination of agribusiness and what they call Monsanto’s “legal assault” on farmers who don’t toe the line. Monsanto’s supporters say advances in health and environmental research are endangered.

And the case raises questions about the traditional role of farmers.

For instance: When a farmer grows Monsanto’s genetically modified soybean seeds, has he simply “used” the seed to create a crop to sell, or has he “made” untold replicas of Monsanto’s invention that remain subject to the company’s restrictions?

An adverse ruling, Monsanto warned the court in its brief, “would devastate innovation in biotechnology,” which involves “notoriously high research and development costs.”

“Inventors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies,” Monsanto states.

Bowman said Monsanto’s claim that its patent protection would be eviscerated should he win is “ridiculous.”

“Monsanto should not be able, just because they’ve got millions and millions of dollars to spend on legal fees, to try to terrify farmers into making them obey their agreements by massive force and threats,” Bowman said.

His squat white farmhouse on the outskirts of his down-at-the-heels hometown is now filled with stacks of documents. There are legal procedure books under the living room end table and a copier in the bedroom that regularly churns out Bowman’s six-page statement of events.

The journey from Sandborn to the Supreme Court is a trip through modern American agribusiness and patent law, an increasing part of the court’s docket but a complex area of law that even the justices approach with some trepidation.

At issue is Monsanto’s ubiquitous weedkiller, Roundup, which has revolutionized American farming. “Weeds are the most significant economic challenge to global food production,” says a brief by the American Soybean Association, which supports Monsanto in the case.

They compete with crops for water, nutrients and light, and Roundup has been especially effective in combatting them. The herbicide’s active ingredient, glyphosate, kills almost everything. Including conventional soybeans.

So Monsanto in 1996 offered a genetically modified soybean that was resistent to glyphosate, and despite alarm from some who oppose such engineering, it has been wildly successful. Through its own seeds and by licensing the technology to other seed producers, a little more than a decade later, more than 90 percent of the soybeans grown in the United States were Roundup Ready.

Farmers who buy seeds with the Roundup Ready trait sign an agreement that says they may be used for one planting only. Even though the gene exists in the new beans they grow, farmers cannot save them for a second planting, nor sell them to others for that purpose.

But they are allowed to sell the beans to giant grain elevators, like those that are the most prominent feature on the flat landscape in Bowman’s corner of southern Indiana.

From 1999 to 2007, Bowman purchased Roundup Ready seeds for his first planting of soybeans and abided by Monsanto’s restrictions. But like some farmers, he also plants a second crop later in the growing season; such crops are highly dependent on the weather, which makes them more hit or miss.

It is too risky to pay the high price of Monsanto’s Roundup-resistant seeds for the second crop of the season, Bowman said, so instead he purchased cheaper commodity grain from the local elevator, which is usually used for feed. He planted it, and when he sprayed the crop with the herbicide, almost all survived. That wasn’t surprising, because 94 percent of Indiana soybean farmers grow Roundup Ready beans.

Bowman told Monsanto exactly what he was doing, and Monsanto told him to stop.

The farmer was in effect “soybean laundering,” according to some of the companies supporting Monsanto at the Supreme Court: selling Roundup Ready progeny beans to the grain elevator and hoping other farmers were too, then buying them back and planting them.

The company sued when Bowman ignored its warnings and won a judgment of nearly $85,000.

Bowman argued that under long-standing legal precedent, Monsanto’s patent claims ended — were “exhausted” is the legal term — once Bowman purchased the Roundup Ready seed.

But the specialized court that hears patent cases, the U.S. Court of Appeals for the Federal Circuit, disagreed and said Monsanto could put restrictions on farmers’ use of progeny beans.

Moreover, the judges said even if Monsanto’s patent was exhausted by the original sale, Bowman was creating copies of the company’s technology.

“While farmers, like Bowman, may have the right to use commodity seeds as feed . . . they cannot ‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants,” the court ruled.

It was one in a string of victories for Monsanto at the Federal Circuit. But the Supreme Court in recent years has taken a much more aggressive stance in reviewing the lower court’s patent rulings. Even though the Obama administration, at the justices’ invitation, said the ruling should be affirmed, the court accepted Bowman’s appeal.

Those worried about genetically modified crops — now dominant in corn, sugar beet and canola production as well as soybeans — say Bowman’s case presents a “microcosm” of the state of American agribusiness, where corporations dominate and bully farmers through lawsuits.

“The current intellectual property environment of transgenic crops has spurred the privatization and concentration of the world’s seed supply,” said a brief filed by the Center for Food Safety and Save Our Seeds, groups that have been highly critical of Monsanto and genetically modified crops. “Market concentration has resulted in 10 multinational corporations holding approximately two-thirds (65 percent) of commercial seed for major crops, reducing choice and innovation, and increasing prices for the American farmer.”

The brief asks the court to end the practice of allowing corporations to place conditions on the sale of its seed and to reject an “end-run around patent exhaustion” for regeneration. “Farming is using seeds, not constructing or manufacturing seeds,” the brief states.

Monsanto, alarmed at the possibilities of what the Supreme Court might do, has circled the wagons.

The Biotechnology Industry Organization warns that advancements in agricultural, medical and environmental research “depend critically on a strong, stable and nationally uniform system of patent rights and protections.”