It’s not often a five-page letter from a farmer crosses my desk, even though it is obviously a typewriter-written, mass-mailed letter addressed to “magazine officials.” It was a letter from Vernon Bowman, a 74-year-old farmer from Sandborn, Ind. He outlined his use of commodity soybeans purchased from a local elevator to use as inexpensive double-crop soybean seed, and the subsequent legal actions taken against him by Monsanto.

This month, the Supreme Court will hear this case of patent infringement, even though the U.S. District Court for Southern Indiana granted judgment for Monsanto, saying that the soybeans Bowman purchased from an elevator to use as seed violated Monsanto patents. Even Bowman’s appeal to the Federal Circuit Court of Appeals was rejected. However, his petition to the Supreme Court was successful, as the highest court in the land wants to consider patent exhaustion in cases such as this one.

At stake is the role of protecting costly innovation - not only in agriculture and biotechnology but far beyond - because it calls into question the enforceability of patent rights and licensing conditions. "If companies and universities can't count on their innovation being protected, few will continue to invest the amounts needed to create new seed, a new medicine or another new technology," stated David Snively, VP and general counsel for Monsanto, in a news release concerning this issue.

As all soybean growers should know, including Bowman (who admittedly signed a technology agreement when he purchased Pioneer Roundup Ready soybeans for his main crop), farmers cannot save harvested grain to replant as seed. Bowman states he did not save the Roundup Ready seed he purchased from Pioneer. The grain he admittedly saved and planted and reproduced for future years’ seed use (over nine years according to Monsanto) was the soybeans bought at a local elevator as what he calls “junk seed.” Monsanto warned Bowman in 1999 he could not save seed, but Bowman claims there was no mention of not being able to save commodity grain purchased from the elevator for seed.

Most soybeans purchased from an elevator of co-mingled soybeans would probably contain Monsanto’s patented Roundup Ready trait. (Monsanto says almost 95% of soybean acres in Indiana consist of Roundup Ready soybeans.) Bowman evidently knew this would be the case, as he applied glyphosate to these double-crop beans (according to Monsanto's brief filed with the Supreme Court, but not mentioned in Bowman's letter).

Two of several patent exhaustion issues that may be decided by the Supreme Court: One is whether a purchaser of grain (like Bowman) has the right to create, use and sell an unlimited number of new generations of that seed or plant without authorization from the patent owner. Second, whether this doctrine permits later purchasers to circumvent the restrictions on replanting in Monsanto’s license agreements, which Monsanto requires buyers to accept before any sale of Roundup Ready seeds by its authorized dealers. Stay tuned.

 

Follow the case here: http://bit.ly/10EDgrp

Monsanto's perspective: http://www.innovationatstake.com

While some farmers I talk to admit to a love/hate relationship with Monsanto (and most non-ag activists have a hate/hate view of the company) perhaps it's time to Think Different in this case? I sincerely thank you for reading and for being willing to Think Different.