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Post by Dan Charles, The Salt at NPR Food (2/18/13)
This week, the Supreme Court will take up a classic David-and-Goliath case. On one side, there’s a 75-year-old farmer in Indiana named Vernon Hugh Bowman; on the other, the agribusiness giant Monsanto.
Bowman also is battling a historic shift that’s transformed the nation’s seed business over the past 20 years.
Despite all that, Bowman seems remarkably cheerful about his situation. “Confrontation does not take a toll on me!” he says. “You and me can argue about the Bible; we can argue about religion. I’ll pound my fist and we can argue all day, and I won’t lose a bit of sleep at night!”
Bowman is leaning back in an easy chair, where he says he also sleeps at night. He lives alone in a modest white frame house outside the small town of Sandborn, in southwestern Indiana.
Out back, there’s an array of old farm equipment collected during decades of growing corn and soybeans.
Bowman is wearing a Monsanto hat. It’s probably an ironic gesture, but in fact, he’s been a pleased and loyal customer of the company’s seeds. He thinks the genes that Monsanto inserted into soybeans are just great. They let soybeans survive the country’s most popular weedkiller: glyphosate, also known as Roundup. He can spray that one chemical to get rid of the weeds without harming his crop.
“It made things so much simpler and better. No question about that,” he says.
Bowman uses these “Roundup Ready” soybeans for his main crop, which he plants in the spring, and he signs a standard agreement not to save any of his harvest and replant it the next year. Monsanto demands exclusive rights to supply that seed.
But here’s where Bowman got into trouble: He also likes to plant a second crop of soybeans, later in the year, in fields where he just harvested wheat.
Those late-season soybeans are risky. The yield is smaller. Bowman decided that for this crop, he didn’t want to pay top dollar for Monsanto’s seed. “What I wanted was a cheap source of seed,” he says.
Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. “They made sure they didn’t sell it as seed. Their ticket said, ‘Outbound grain,” says Bowman.
He knew that these beans probably had Monsanto’s Roundup Ready gene in them, because that’s mainly what farmers plant these days. But Bowman didn’t think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto’s seed business. “I couldn’t imagine that they’d give a rat’s behind,” he snorts.
Bowman told his neighbors what he was doing. It turned out that Monsanto did, in fact, care.
“He wanted to use our technology without paying for it,” says David Snively, Monsanto’s general counsel.
Monsanto took Bowman to court, and Bowman was ordered to pay Monsanto $84,000 for infringing the company’s patent.
Bowman appealed. To the surprise of many, the highest court in the land agreed to hear his case. “I’m not a-gonna give in! Because I think I’ve done nothing wrong!” says Bowman.
His lawyers, who are representing him for free, have come up with a legal argument for why he did nothing wrong. If they succeed in persuading the court, it could pull the rug out from under Monsanto, and some other industries, too.
Bowman’s lawyer, Mark Walters from the firm of Frommer Lawrence and Haug, says there’s a very old principle in patent law: If you buy something that’s covered by a patent — let’s say it’s a cell phone — you own it, outright. “You’re allowed to put it on Craigslist and sell it, you’re allowed to use it for your ‘ordinary pursuits of life’ is the quote from some of the old cases that we’re relying on.”
It’s a valuable principle, Walters says. “Imagine how commerce would work if patents owners could come out of nowhere and surprise purchasers and tell them, ‘Oh, you need to pay me a royalty, because I own a patent on this thing that you just bought.'”
So according to this principle of “patent exhaustion,” Bowman bought that seed and can do with it what he wants. Patent holders have no right to stop him.
Monsanto’s David Snively, for his part, says this argument completely misses the point. Yes, we can buy an iPhone and do whatever we want with it, “but we’re not going to go out and make copies of the iPhone and put Apple out of business,” he says.
That’s what Bowman did, says Snively. When he planted this patented seed, he made copies of it.
In fact, he says, if farmers were allowed to do this with patented seeds, the patents would be worthless.
A number of industry organizations have come to Monsanto’s defense, including the Biotechnology Industry Organization.
Hans Sauer, deputy general counsel at BIO, says many biotech products are a lot like seeds. “They are easily replicated. They are difficult to make, but once created they are relatively easy to reproduce.” The same is true of computer software.
But these are new technologies. Farmers’ seeds are old; they’re the original self-replicating technology, and for centuries, nobody tried to claim them as intellectual property.
That’s one reason why Monsanto’s patents and lawsuits against farmers have stirred up so much anger and received so much attention.
What’s less well known, however, is that the practice of patenting seeds has moved far beyond Monsanto and other biotech companies.
It’s standard practice now even among small companies like Great Heart Seed, in Paris, Ill.
Great Heart Seed’s warehouse is filled to the rafters with white bags of soybean seed. The company sells 45 different varieties in all. Some grow better in the south, others in the north. Most have Monsanto’s Roundup resistance genes, while others do not.
Yet all of these varieties are patented. “Nearly everything out there has a patent on it now,” says Nels Kasey, one of the Great Heart’s owners.
Twenty years ago, that wasn’t the case. Many seed dealers sold “public” varieties that came from breeders at universities like Iowa State or Purdue.
Today, most new varieties come from private companies, and even universities acquire patents on most of the varieties that they do release.
Farmers aren’t supposed to save and replant those seeds, either.
Kasey says, the new system gives soybean breeders and seed companies more profits, and a stronger incentive to create and sell even better plant varieties. “I’m really proud of the varieties that we have today. When I started in this company, you had a handful of varieties. Today, there’s more money in it, more profit in it, so I can support 45 lines,” he says.
Those seeds, though, are also more expensive. Soybean seeds have tripled in price over the past 20 years. And a farmer like Bowman who just wants some cheap, generic seeds can’t easily find them.
Bowman can see towering bins filled with soybeans all around southwestern Indiana, but according to the seed companies, he can’t plant any of them.
In fact, after Monsanto took Bowman to court, his search for unrestricted seeds took him all the way to Ohio, one of the very few places in the country where the state still distributes non-patented soybean varieties.
Bowman acquired some of that seed — a variety called Dennison — and grew it last year. He saved part of his harvest. Those soybeans are now sitting in an old combine in a shed behind his house.
If the Supreme Court rules against him, Bowman can still use those beans for seed this year.
Copyright 2013 NPR.