Commentary: In defense of the defendant

Most of the time, wading through the details of a Supreme Court case is an exercise in cognitive stamina. Even though the issues are often squarely in the public consciousness, the legal briefs that accompany such cases normally make a 1040 return look like the Sunday comics.

The case of Bowman v. Monsanto, however, presents not only an intriguing biotech backstory but clear and compelling legal arguments, as well.

Here’s the background:

An Indiana farmer, Vernon Bowman, planted Monsanto’s patented Roundup-Ready^® soybeans—and paid the firm’s licensing fees— for several years. However, knowing that almost all of the conventional soybeans grown in Indiana carried the genetically modified trait that makes them glyphosate-resistant, Bowman allegedly bought unlabeled commodity soybeans from a grain elevator to plant as a second crop. According to Monsanto’s brief, he then sprayed his fields with Roundup, thus killing the soybeans that did not carry the genetically engineered resistance trait, cultivated several soybean crops and saved the seeds for re-planting.

However, after six years of his allegedly circumventing the licensing agreement Monsanto requires famers to sign—which entitles them only to plant a single commercial crop and prohibits them from saving the seeds for re-planting or buying Round-up Ready seeds from an unauthorized dealer—the company filed suit, alleging patent infringement.

An Indiana federal district court concluded that Bowman did indeed infringe on Monsanto’s patents, and the federal Court of Appeals affirmed that ruling. Bowman appealed, and the Supreme Court decided to hear the case last fall. Oral arguments will take place on Feb. 19, with a decision expected in late spring.

Crimping the company’s R&D?

An amicus brief filed on behalf of the American Soybean Association, 15 state soybean associations, the National Corn Growers Association, National Association of Wheat Growers, American Sugarbeet Growers Association, and Growers for Biotechnology took the position that if farmers can do an end-run around Monsanto’s licensing fees by purchasing commodity seeds for planting, “A domino effect would ensue. To remain competitive, more farmers would need to gamble on buying commodity grain for planting. Of course, commodity soybeans sold by an elevator do not comply with federal or state seed laws regarding labeling or certification and therefore farmers know little about the germination rate, moisture content, weed percentage or other important planting-related information about the grain they are purchasing.”

By that reasoning, the company’s sales and profits would decline, which could cause a diversion of funding away from R&D for soybean biotech development and ultimately, less agricultural innovation.

“This would likely have serious impacts on American farmers and society as a whole as the world’s population is rapidly increasing, ever-more food is needed and less land is available for agriculture,” the brief stated.”

Elsewhere, the amicus brief goes into great detail about the issues of competition, meeting global food and fuel needs, etc. I’ll spare you wading through that glut of information—important though those topics are—and cut to the chase. Here’s why this case matters:

“Weeds are the most important pest complex facing soybean farmers and the introduction of glyphosate-resistant soybeans dramatically changed how soybean farmers addressed weed management.”

That’s the crux of the case, taken directly from Monsanto’s brief. The company’s patents matter because farmers derive real and tangible benefits from glyphosate-resistant soybeans. It simplifies planting, dramatically improves weed control and thus measurably improves yield, which means profits. Take away the lock Monsanto has on Round-up Ready beans and it would indeed impact the company’s profitability.

That wouldn’t necessarily devastate its investment in R&D, but it certainly supports its legal argument about patent enforceability.

As Monsanto’s briefs state, the case turns on “whether the first-sale doctrine grants the purchaser of a patented article the right to make, use, and sell an unlimited number of new copies of the patented invention that have never been sold; and whether patent law treats as per se unenforceable all restrictions imposed by license on the use of a patented article following an authorized sale.

In other words, creative circumvention aside, if a farmer can use Monsanto’s domination of the sale of soybean seeds against the company, is their patent even worth the paper on which it’s printed?

It’s likely that the Supreme Court will side with Monsanto. Its recent history is pro-business and corporate-friendly.

But at the end of the day, you have to acknowledge that Vernon Bowman is a pretty shrewd character. Even if he doesn’t prevail, he deserves credit for figuring out a way to grow his crops cheaper and better.

Isn’t that Monsanto’s enduring mission, as well?

The opinions expressed in this commentary are solely those of Dan Murphy, a veteran food-industry journalist and commentator.

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