The case is Bowman v. Monsanto and the recent ruling by the Supreme Court means that Farmers must pay Monsanto each time they plant one of the conglomerate company’s genetically modified soybeans. Despite the Indiana Farmer’s argument that his farming techniques did not violate Monsanto’s patent on the seeds, the Supreme Court Justices weren’t buying it.

Farmer Vernon Hugh Bowman alleged that Monsanto’s seeds are herbicide-resistant and self-replicating and therefore the seeds’ offspring that he planted were not in violation of the patent as expressed by Monsanto. Unfortunately for Bowman, the Justices did not agree and Justice Kagan, writing for the majority, said that a “seeds-are-special” exception just does not exist in the eyes of the law.

“Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium,” said Kagan, She said his “blame-the-bean defense” strategy just wasn’t applicable.

“Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops,” Kagan wrote.

Patents and Self-Replication Issues

Though the main thrust of the case discussed soybeans, the underlying subject was regarding patent protection and its importance to other areas of science and technology where self-replication is at issue. If patents were only honored on the first sale, due to self-replication abilities (a legal theory known as patent exhaustion) then there would be a lack of incentives to invest in this science as well as a fear by most companies regarding the threat to their investments; meaning companies truly would have no control or claim to their products once they were sold.

Justice Kagan did however warn that this decision was limited in scope and did not address all self-replicating patent issues that may present themselves. “We recognize that such inventions are becoming ever more prevalent, complex, and diverse,” Kagan wrote. “In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.” However she did conclude that “We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.”

Farming Practices Are Source of Debate in Patent Law

It seems that the justices accepted this case due to their belief that Bowman’s farming practices are those that would threaten future scientific innovation which is at the center of so many patent law debates. If someone were able to recreate a patented product simply by planting the progeny of a plant, for instance the soybean,  “a patent would plummet in value after the first sale of the first item containing the invention,” said Kagan. “And that would result in less incentive for innovation than Congress wanted.”

Years ago Bowman entered into an agreement with Monsanto to purchase their Roundup Ready (Roundup Resistant) soybeans for his first planting on 300 of his acres in southern Indiana. As part of the agreement, Bowman agreed that he would not save any seeds from his crop for future planning, and technically he didn’t. Bowman says that a second planting of the crop is always more risky and did not feel that paying Monsanto’s prices once more would be a cost-effective business practice. So instead of purchasing from Monsanto, Bowman purchased commodity soybeans from the local grain elevator (which are typically used as livestock feed).

The story goes that Bowman continued in this practice, all the while evading Monsanto’s prices and still yielding a generous crop of soybeans. When Monsanto discovered this they filed suit alleging patent violation for which the U.S. Court of Appeals for the Federal Circuit agreed and ordered Bowman to pay almost $85,000 in damages.

Bowman eventually conceded the point that he was not in fact creating a new product and that the exhaustion doctrine bars him from doing so. In the end “it was Bowman, and not the bean, who controlled the reproduction (unto the eighth generation) of Monsanto’s patented invention,” Kagan wrote.

I never thought to ask “where do soybeans come from”, but I suppose now I know...perhaps more than I need to!

 

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