On February 19, 2013, the US Supreme Court heard oral arguments on Bowman vs. Monsanto- a case which holds the potential to affect patent law as we know it, seed and otherwise.
Vernon Hugh Bowman is a 75-year-old soybean farmer from Sandborn, Indiana, who is challenging the concept of patent exhaustion on Monsanto’s seed. Really for Bowman- and farmers worldwide- it’s an issue of agrarian tradition. Farmers plant seeds, save seeds, re-plant seeds. Or so the story went until about 20 years ago when patent law shifted the agricultural landscape. Biotech companies selling herbicide-resistant and other genetically engineered seeds require farmers to sign technology use and licensing agreements stating they’ll forego this age-old tradition: they won’t re-use the now “patented technology” for further use.
According to a recent edition of NPR’s The Salt by Dan Charles, Bowman is familiar with the process as he annually plants a main crop of Monsanto’s “Round-up Ready” soybeans each spring. Bowman doesn’t save any of this crop’s harvest for a later planting.
Instead he enacts another once familiar tradition amongst commodity farmers who don’t want to buy top-dollar seed for the later season, and therefore riskier, crop. Since 1999. Bowman has been purchasing his second-crop seeds from a local grain elevator. This undifferentiated mix of seeds from other local farmers inevitably contained some of Monsanto’s GE seeds, as 90% of US-grown soy is GE, but Bowman thought it wouldn’t be an issue.
He thought wrong. According to Monsanto, Bowman is infringing the company’s patent and they expect him to pay for it in the sum of $84,000.
Bowman’s pro-bono legal services, Mark Walters from the firm of Frommer Lawrence and Haug, argues according to patent law principle. In today’s oral argument before the Supreme Court, Walters says, “Patent exhaustion provides that once a patented article is sold, it passes outside the protection of the Patent Act. It is available to be used by the purchaser to practice the invention.”
Walters continues that we’re in new territory in terms of the patent doctrine, with patents now issued on self-replicating technologies.
So where does Monsanto’s reach end?
Today’s Oral Argument considers the answer. Read the full transcript here.
The audio is also available here.
A decision will be made before the court enters recess, which usually happens at the end of June.