¶ … United States Patent and Trademark Office granted a patent to the Monsanto Company for its genetically modified seeds in 1994, and in 2006, the company developed a soybean that was resistant to glyphosate-based herbicides, including those that they sell directly to farmers. Indiana farmer Vernon Hugh Bowman started purchasing Monsanto seeds in 1999, agreeing to the company's policy that the seeds only be used for one growing season. Yet that same year, Bowman purchased second-generation soybean seeds from a grain elevator, essentially a third-party vendor. The third-party vendor seeds are intended for use not as future generation seeds but as harvest crops used in animal feed or consumption. However, to save costs, Bowman replanted the grain elevator seeds, beliving those seeds to be exempt from the patent provisions. Monsanto sued Bowman successfully. The Appellate and Supreme Courts substantiated the original decision and ruled that Bowman had to pay Monsanto for damages.

The Facts

The Monsanto Company patented Roundup Ready soybean seeds, "which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosphate," (Supreme Court of the United States 1). Monsanto has also developed a licensing agreement with customers "that permits farmers to plant the purchased seeds in one, and only one, growing season," (Supreme Court of the United States 1). Also part of Monsanto's agreement with customers is that the farmer cannot sell the patented seeds to other growers. However, "growers may sell the second-generation seed to a grain elevator," (Boyman v. Monsanto).

What happens to the second-generation seeds is the crux of the legal issues at stake in Bowman v Monsanto. The Supreme Court ruled that the second-generation seeds, even when acquired legally from the grain elevator, cannot be replanted without paying Monsanto. A farmer by the name of Vernon Hugh Bowman from Indiana had purchased second-generation seeds from a grain elevator in precisely this manner. Bowman planted the second-generation seeds, which are considerably cheaper than Roundup Ready seeds, and then reused the seeds from the successful soybean crops. The successful soybean crops happened to be the ones that contained Roundup Ready.

When Monsanto tested Bowman's soybeans and found the patented material inside the seeds, the company sued the farmer for patent infringement and won the case. Bowman was ordered to pay Monsanto $84,000 in damages (Totenberg). The appellate courts upheld the decision, and the case went to the Supreme Court, which ruled unanimously in favor of Monsanto. Justice Elena Kagan issued the full opinion stating that the doctrine of patent exhaustion might permit a person to eat the soybean but not to replant its seeds, which still contain Monsanto's patented genetic modifications.

Patent Exhaustion

Bowman argued in his defense that the doctrine of patent exhaustion allowed farmers like him the "right to reuse or sell" the article (Supreme Court of the United States 1). The Supreme Court ruled that the right to reuse or sell does not extend to the seeds on the grounds that the doctrine of patent exhaustion pertains only to the "particular article" sold (Supreme Court of the United States 2). The second-generation seeds are not the "particular articles" sold to Bowman directly from the Monsanto Company. In other words, farmers do not have the right to replicate Roundup Ready seeds, even when they are second-generation seeds. After all, the contract between business and buyer stipulates that the farmer must only use the seeds for one season only, and afterwards must repurchase new seeds for the following growing season.

An analogy would be a person who reverse-engineered an iPhone and then claimed that the doctrine of patent exhaustion entitled the consumer with the right to manufacture a new phone based on the iPhone specifications. The Supreme Court made its decision based on the fact that the patent would "provide scant benefit" if farmers were allowed to simply copy the genetic material ad nauseum (Supreme Court of the United States 2).

Analysis

Bowman does seem to have deliberately sought out the Roundup Ready seeds by planting the seeds purchased from the grain elevator first, then treating the entire crop with the herbicide glyphosphate, and then harvesting the plants that survived the herbicide treatment: ostensibly the plants that contained the genetic modifications. Bowman then harvested the soybean crop and saved the Roundup Ready seeds for future planting.

The issue of self-replication arises in this case because unlike iPhones and other technologies, seeds are biological organisms that replicate on their own. The Bowman v Monsanto case is not one in which Roundup Ready seeds were blown...

Rather, Bowman purposely purchased the soybean seeds from a grain elevator even though "seeds from grain elevators are typically sold for animal feed, food processing or industrial uses," but not for harvesting seeds and replanting (Liptak 1). Bowman would have been legally allowed to consume the soybeans, or use them for animal feed, but not replicate the seeds containing the patented material. Justice Kagan called Bowman "too clever for his own good," because he tried to outsmart both Monsanto and patent law (cited by Liptak 1). When Bowman claimed that he was planting the seeds in the "normal way farmers do," the Court responded that Bowman was "not a passive observer," (Supreme Court of the United States 2). It was "Bowman and not the bean who controlled the reproduction…of Monsanto's patented invention," and Bowman had been replicating the seeds for eight growing generations (Supreme Court of the United States 9).
Even if the wind had carried Roundup Reaady seeds onto Bowman's soil, Bowman would not have been legally permitted to harvest and replant the soybean seeds. In this case, Bowman conscientiously and deliberately took the Roundup Ready crops and planted them for the following growing season. In the decision, Justice Kagan noted that the ruling was "limited" because of the unique capacity of self-replicating organisms and noted that "self-replication might occur outside the purchaser's control," (Liptak 1).

The District Court had determined no nefarious, malicious, or criminal culpability on the part of Bowman, instead stating that Bowman was "within reason" to presume what he was doing was legal (Young 5). The District Court also cited that Bowman "never attempted to hide what he was doing and, in good faith, he believed that his actions did not violate the patents at issue," (Young 5). Thus, Bowman was ordered to pay Monsanto for the estimated loss of royalties reaped from replicating the seeds legally. The language of the Supreme Court's decision was slightly more admonishing in tone towards Bowman, whom Kagan derides for "blaming the bean," (Supreme Court of the United States 9).

Why It Matters

Monsanto has been vilified in the media as an "agribusiness behemoth," turning Bowman v Monsanto into a David v Goliath story (Totenberg). Farmers like Bowman prefer using second-generation seeds to save money, especially given the fact that Roundup Ready and similarly patented seeds cost three times as much as their counterparts (Totenberg). Bowman was 75 years old when the case went to trial, underscoring the David v Goliath theme.

According to Totenberg, the Bowman v Monsanto case "pitted two legal doctrines against each other," one that permits a consumer from "doing whatever you want" with a patented item once it has been purchased, and another that "forbids" copying of the item altogether. When it comes to "self-replicating products" like seeds, though, patents become harder to protect. The Supreme Court recognizes the value of patenting genetically modified material and the rights of the business to retain the valuable rights to their patented products.

Bowman v Monsanto pertains as much to intellectual property as it does to patent law. Roundup Ready seeds can be considered a type of intellectual as well as physical property. The genetic modifications had been derived from research, funded in part by the Monsanto Company, which hoped to reap financial rewards from its investment.

Regardless of the ethical issues surrounding seed patenting, the facts of the case remain focused on the parameters of patent law and copyright law. The district court had initially agreed with the plaintiff that the Monsanto Company "faces constant risk of unauthorized use and must engage in such activities as crop monitoring in order to enforce its patents," (Young 5). Therefore, an ancillary effect of the decision is the condoning of customer monitoring to ensure the rightful use of the patented products.

Conclusions

While it may be politically incorrect to side with the Monsanto Company due to the spurious ethics of seed patenting and the implications for global food security, the facts of Bowman v Monsanto pertain squarely to patent law, tort law, and copyright law. The Supreme Court did not use the case as a political platform to discuss the ethical merits of seed patenting, but remained focused on the issue of whether Bowman violated the patent or not, which he did by deliberately replicating Roundup Ready patented seeds without compensating Monsanto. Bowman was aware that Monsanto prohibited the replication of its seeds without compensation, and to work around the stipulation while saving money, the farmer opted for a creative solution. Unfortunately, Bowman's methods ended up…