Indiana Farmer, Monsanto Go Toe-to-Toe in Patent Fight Before Supreme Court

By Josh Long

WASHINGTON The U.S. Supreme Court will decide whether a 75-year-old soybean farmer from Indiana is liable to Monsanto Co. in a patent infringement lawsuit that could have big implications for American farmers who purchase "Roundup Ready" seed that has been genetically modified and resistant to weed-killers. 

Vernon Hugh Bowman wants the high court to overturn an $84.456.20 judgment against him for infringing on two patents belonging to the world's biggest seed firm because he argues Monsanto's patent rights were "exhausted".

In September, the U.S. Court of Appeals for the Federal Circuit reached a different conclusion, upholding the judgment in favor of Monsanto, the St. Louis, Mo.-based agricultural company with $13.5 billion in annual sales.

The five-year-old lawsuit concerns the rights to technology Monsanto has developed for genetically-modified Roundup Ready soybeans that show resistance to glyphosate-based weed-killers including its Roundup herbicide.

Farmers who purchase Monsanto's Roundup Ready seeds agree to several restrictions including limiting their use of seed to a single commercial crop season.

In its brief opposing Supreme Court review, Montanso asserted these restrictions are necessary because its technology is "self-replicating" meaning "the progeny of the plants grown with the modified genes will also contain the genetic trait that makes them resistant to glyphosate."

Ten years ago, Bowman bought Roundup Ready seeds from a licensed seed producer Pioneer Hi-Bred and planted those seeds for several seasons. In accordance with a technology agreement, he didn't save the Pioneer Hi-Bred seed during any of those years, according to the Federal Circuit's decision.

Monsanto, however, determined Bowman had saved different seed for replanting that contained Roundup Ready technology and therefore was resistant to glyphosate. Those saved seeds had been purchased from a local grain elevator that sold "commodity seed" to the farmer, according to court documents.

Commodity seed contains a mixture of seed harvested from various sources and can be used for different purposes including feed. Monsanto allows growers to sell second-generation seed to local grain elevators as a commodity, the Federal Circuit observed in its Sept. 21 opinion, and it appears from court documents the grain elevator's sale to Bowman didn't restrict his use of the commodity seed.

In October 2007, the farmer was sued for infringing on Monsanto's patents.

Bowman argued Monsanto had "exhausted" its patent rights under Supreme Court precedent because the sale of second-generation seed to grain elevators and subsequent sale to purchasers like himself had been authorized.

The Federal Circuit wasn't persuaded. Circuit Judge Richard Linn wrote that the "exhaustion doctrine" was inapplicable, and that even if it did apply, "such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto's Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article."

Monsanto declares it must have assurances that it can protect its investments. On a website dedicated to the case, the company said the restriction limiting soybeans to a single generation is "necessary because planting a single soybean as a seed can produce over 30 copies of that soybean, and each soybean grown from a Roundup Ready soybean will contain the same patented trait as the original."

"Without restrictions on the grower's ability to make new generations of soybeans, Monsanto's (or any trait inventor's ) ability to protect its patented technology and to recover its R&D investment would effectively be lost as soon as it sold the first bags of seeds," Monsanto declared.

But in a brief filed earlier this month with the Supreme Court, Bowman claimed the lower court's "decision provides Monsanto with an unprecedented level of protection."

"It permits Monsanto to sue farmers for patent infringement when they plant seeds that have been purchased on the open market in authorized and unrestricted sales," Bowman's lawyers wrote. "This decision conflicts with more than 150 years of law from this Court holding that patent rights terminate after an authorized sale."

A spokesperson for Monsanto said the company planned to file its brief next month with the Supreme Court.

The high court's decision could prove to be an important one for American farmers.

The Center for Food Safety contends Monsanto has persistently investigated and prosecuted farmers for patent infringement, obtaining 72 recorded judgments totaling more than $23.6 million.

"Yet these recorded judgments, startling as they are, fail to convey a true picture of the full scope of Monsanto's actions against U.S. farmers," the Center for Food Safety wrote in a brief to the Supreme Court in support of Bowman, "because the overwhelming majority of Respondents' alleged patent infringement threats end in out-of-court settlements."

Josh Long is Legal and Regulatory Editor with VIRGO's Health & Nutrition Network. He can be reached at [email protected].