By KEVIN WALKER
WASHINGTON, D.C. — Last week the U.S. Supreme Court heard arguments in a case that could have a real impact on agricultural biotechnology, as well as intellectual property in general.
The case is Bowman v. Monsanto, featuring Vernon Bowman, an Indiana farmer who bought some Roundup Ready (RR) seeds from a grain elevator and planted some of them instead of feeding them to his livestock. He then took the seeds from the plants that grew from the originals and planted those as well.
According to Monsanto Co., Bowman also sprayed the soybean plants with glyphosate, thus killing off those that were not RR. He bought more seed from an area grain elevator and, because RR seeds are used by most of the area’s farmers, most of the seeds he bought were RR anyway.
Monsanto learned of what Bowman was doing and told him to stop. According to the company, he didn’t and so, Monsanto sued in federal court in Indiana. Monsanto argued Bowman was making copies of the RR technology, which can be a violation of patent law.
Bowman, on the other hand, said he wasn’t making copies of the technology but simply using seeds that replicated themselves. He also argued that once the seeds had been sold to the grain elevator, Monsanto no longer had patent rights under the legal doctrine of “patent exhaustion.”
In September 2009 the U.S. District Court for the Southern District of Indiana ruled in favor of Monsanto and ordered Bowman to pay more than $84,000 in royalties and other fees. In September 2011 a federal appeals court affirmed the lower court’s decision.
Then, Bowman appealed to the U.S. Supreme Court and the case was finally heard last week.
“Today’s case highlights the importance of intellectual property protection in supporting America’s continued investments in breakthrough 21st century technologies that support the increasing demands of our planet and our people,” said David Snively, executive vice president and general counsel for Monsanto, on Feb. 19.
“We are confident the court will give thoughtful consideration to the arguments expressed today. America’s leadership in fostering the incentive to invest in research and development has created the world’s leading innovation economy, with millions of high-technology jobs – not just in our field of agriculture, but in other R&D (research and development)-intensive fields like medicine, biotechnology, computer science and environmental science.”
Technology innovation was on U.S. Chief Justice John Roberts’ mind last week when he queried Bowman’s lawyer, Mark Walters, during the oral arguments. “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those as they want?” Roberts asked.
“I agree no one would do that, and I don’t think that is the situation here,” Walters said. “I think we have, and we have explained how respondents here can protect their invention through contracts.”
In a Friend of the Court brief submitted to the Supreme Court, Bowman’s supporters argued Monsanto has other ways it could protect its technology, in lieu of what they called the expanded patent enforcement sought by the company. The American Antitrust Institute, National Farmers Union and others write Monsanto has the technological means to prevent the duplication of its invention; they point to a letter from Monsanto CEO Robert Shapiro to Rockefeller Foundation President Gordon Conway and others on Oct. 4, 1999.
The letter noted the company could have developed its “terminator gene” technology, which would render progeny seeds sterile. The so-called terminator gene is an example of Gene Use Restriction Technology (GURT). In the letter Shapiro notes Monsanto decided not to pursue the terminator gene out of public concerns that it could end up in the crops of farmers in Third World countries and create problems. At the same time the letter said the company has patents on technological approaches to gene protection other than the terminator gene. But neither the letter nor other company statements about GURT explain why Monsanto hasn’t pursued these technologies.
When asked by Farm World, a company spokesman wouldn’t elaborate, but referred more questions to another company official. An email message to that official last week with questions wasn’t returned as of press time. Bowman’s supporters say the company’s strategy has been motivated by a desire to maximize profits and because it knows it can protect its interests using contract law.
A decision on the case is expected by the end of June.