Legal Ease: Beans Go to Court

July 26, 2013 09:55 PM
 
John Dillard

I always get nervous when the handful of Harvard and Yale attorneys on the Supreme Court make decisions on issues that have a major impact on the future of agriculture. That’s exactly what happened when the Supreme Court decided to hear Bowman v. Monsanto Co.

The question posed to the Court was essentially this: Do biotech patents only apply to the first sale of seed, or do they extend to subsequent (F2, F3, etc.) generations of seed?

In mid-May, the Supreme Court unanimously decided that biotech trait patents apply not only to the initial planting of patented seed but also to any offspring that contains the patented trait.

Years in the making. The events spurring the case started in 1999. Roundup Ready soybeans had only been on the market for three years, but they were already wildly popular. Vernon Hugh Bowman, a small row-crop farmer in Indiana, purchased patented seed for his first crop from a dealer and paid the premium associated with the patented seeds. To plant his late-season crop, Bowman purchased commodity beans from a local grain elevator to use as seed.

After emergence, he sprayed the "commodity bean" crop with glyphosate because most of the soybeans grown in his area contained the glyphosate-resistant trait. Consequently, most of his crop survived the herbicide application. Bowman harvested the surviving beans and saved a portion to plant the next year.

For eight years, he continued this routine for his late-season soybeans, avoiding payment of patent premiums. In 2007, Monsanto sued Bowman for patent infringement.

The optics of the case were favorable for Bowman. The case pitted a 76-year-old, salt of the earth, Midwestern farmer who typified the rebellious American spirit versus a giant seed and chemical company with a reputation (whether deserved or not) for heavy handedness. Groups against genetically modified (GM) crops championed Bowman’s cause as a "David versus Goliath" battle.

One aspect that went overlooked was that Bowman himself was not opposed to GM seeds. He bought seeds under the assumption they were mostly GM seeds, and he sprayed them with glyphosate to be sure the resulting crop would be GM. The real dispute in this case was whether a farmer had to pay for GM technology if he did not directly purchase it from a licensed dealer. The Supreme Court said that he must.

The end. The Supreme Court’s opinion in Bowman’s case is likely the final decision that the federal courts will have to make on seed patent rights in the near future.

In 1980, the Court held that living things can qualify for patent rights (Diamond v. Chakra­barty). In 2001, the Court held that patent rights could apply to sexually reproducing plants (J.E.M. Ag Supply v. Pioneer). The Bowman decision now upholds the proposition that patent rights extend to subsequent generations produced from patented seed.

This series of decisions affirms that biotech companies have patent rights for their genetic traits, they can control how their patented traits are used, and this control extends to prohibiting the use of soybeans containing their trait for planting. This is unlikely to change without congressional action.

While there is certainly room for honest disagreement about the merits of this decision, it was ultimately the right outcome for the future of agriculture. Biotech premiums are, no doubt, expensive. Nonetheless, developing GM traits and navigating the regulatory process is also costly. Biotech companies depend on annual premiums to fund additional research. Hybrid crops, such as corn, already require annual purchases.

Without strong patent protection for self-pollinating crops, saved seed schemes would become prevalent, and premiums would drop off. Without premiums, we would see a decline in research and development investments for self-pollinating crops, which would lead to stagnation in efforts
to produce higher yielding crops.

We, in agriculture, face the task of feeding 9 billion mouths by 2050. We cannot afford any possible technological stagnation.

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