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Supreme Court justices seem to lean toward Monsanto in seed case

This article first appeared in the St. Louis Beacon, Feb. 19, 2013 - WASHINGTON – In what some view as a David vs. Goliath case of a farmer taking on agribusiness giant Monsanto Co., the St. Louis-based behemoth appeared to be winning the argument Tuesday in the Supreme Court.

During the hour-long oral arguments, justices appeared skeptical of Indiana farmer Vernon Hugh Bowman’s assertion – as expressed by his attorney – that his use of next-generation Roundup Ready soybean seeds did not violate Monsanto’s patent.

The closely watched case has far-reaching implications for research companies and universities seeking to protect their patents on what some experts call “self-replicating technology,” such as genetically modified seeds.>

Chief Justice John Roberts set the tone of the arguments when he quizzed Bowman’s attorney, Mark P. Walters of Seattle, about his contention that the next-generation seeds used by Bowman qualified under “patent exhaustion” – and that Monsanto’s patent on later generations of the genetically modified seeds was no longer protected.

Roberts countered: “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 seeds as they want?”

But Walters contended that Monsanto is putting client farmers in the position of “servitude” when it comes to their patented beans. “They want the farmers to take all the risks associated with farming, yet they want to control how they use those seeds all the way down the distribution chain,” he said.

Walter’s arguments were rejected by Monsanto’s attorney, Seth P. Waxman, who said Monsanto had “committed hundreds of millions of dollars in 13 years to develop this technology,” which he described as “probably the most rapidly adopted technological advance in history.

"The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms” in this country.

Backed by the Justice Department, Waxman contended that a Supreme Court ruling in favor of Bowman would be damaging not only to Monsanto but also to universities, biotechnology firms and researchers that patent easily replicable technologies.

“Without the ability to limit the reproduction of soybeans containing this patented trait, Monsanto could not have commercialized its invention and never would have produced what is now the most popular patented technology” in agriculture, Waxman said.

As for Bowman, the 75-year-old farmer said afterward that he sat so far back in the courtroom that he could barely hear any of the arguments. Even so, he defended his position on the Supreme Court steps and contended that Monsanto had blown the case out of proportion

“There’s no threat to Monsanto,” Bowman told reporters afterward. “To me, the threat of using elevator grain as seed is no threat, because that’s considered ‘junk’ seed.” When he bought the seed, Bowman said, he didn’t even know if it had Roundup Ready protection against Monsanto’s Roundup (glyphosate) herbicide.

But Justice Steven Breyer said it seemed clear that the farmer had infringed Monsanto’s patent. “There are certain things that the law prohibits,” Breyer said. “What it prohibits here is making a copy of the patented invention. And that is what he did.”

To protect its investment in their development, Monsanto has a policy that prohibits farmers from saving or reusing the seeds once the crop is grown. Farmers must buy new seeds every year.

“Once there is an authorized sale you can do what you want with respect to the seed that you've actually purchased. That is the tangible article you paid for,” explained Melissa Arbus Shetty, representing the Justice Department. “But you do need permission from the patent holder in order to make a new generation of seed.”

The key patent questions involved in the case are why the Justice Department, most research universities (including the University of Missouri and the University of Illinois) and such major technology firms as Apple and Microsoft backed Monsanto’s position. Companies and researchers that hold patents on DNA molecules, nanotechnologies and other self-replicating technologies are especially interested in the case.

Although Tuesday’s argument focused mainly on soybeans and patent law, there were a few light moments, such as when Justice Antonin Scalia questioned Waxman about Monsanto scientists’ use of a “gene gun” to inject recombinant DNA> into soybean germ plasma to create the genetically modified version.

“One shot of a gun,” said Scalia, spurring Waxman to counter: “I think you may be able to shoot several -- I don't know whether you can shoot a whole round or whatever.”

Scalia then quipped, “You can't rob a bank with it, though, right?” As observers in the courtroom laughed, Waxman responded: “I, in my mind, have been trying to figure out what a gene gun looks like.”

A decision in the case is expected by June. If the Supreme Court decides in favor of Monsanto, Bowman – who is not paying for his legal representation – would in theory have to pay a fine of about $84,000 assessed by a lower court and affirmed by a federal appeals court.

But Bowman tells reporters that, after he went broke a few years ago, his assets amount to only about $4,000.