The Salt
12:02 pm
Tue October 16, 2012

Farmer Tackling Monsanto's Seed Policy Gets A Day In Supreme Court

Originally published on Wed February 13, 2013 10:57 am

Why do so many people hate Monsanto?

Is it because this multinational corporation pioneered some enormously successful genetically engineered crops, including corn, soybeans and cotton?

Maybe, but I suspect that much of the passion is inspired by Monsanto's hard-line approach to ownership of those crops. Monsanto claims those seeds — and all offspring of those seeds — as its intellectual property. Farmers aren't allowed to save and replant any part of their harvest; if they do, Monsanto takes them to court and demands large damages. Critics call the company bullying and ruthless.

Ruthless or not, in almost all cases, courts have found Monsanto's tactics perfectly legal. Now, in a move that surprised many observers, the U.S. Supreme Court has decided to take a look.

The court announced earlier this month that it will hear the arguments of a 74-year-old farmer in southwestern Indiana who says that Monsanto's far-reaching claims are unfair and illegal.

The details of this case are intriguing, and slightly different from the earlier "farmer vs. Monsanto" cases. This farmer, Vernon Hugh Bowman, has been a loyal customer for Monsanto's "Roundup Ready" soybeans — but only for the primary growing season, in the spring and early summer. After he harvested his wheat fields, Bowman sometimes tried to squeeze in a second soybean crop on those fields.

That "double crop" was no sure thing, so he didn't invest a lot of money in it. He planted the cheapest seeds he could find — including some ordinary soybeans that he picked up at a local grain elevator. (Peruse the full story yourself in the farmer's account and Monsanto's response.)

But here's the problem: Monsanto's soybeans account for 94 percent of all the soybeans grown in Indiana. So almost all the soybeans that Bowman could get his hands on contained the patented "Roundup Ready" gene.

Bowman went ahead and planted them anyway, without paying Monsanto's "technology fee." He also took advantage of the gene. It allowed him to spray Roundup (or a generic version of the same weedkiller), which made controlling weeds relatively cheap and easy.

Monsanto found out and took Bowman to court. A federal judge agreed that Bowman had broken the law and ordered him to pay $84,000. An appeals court affirmed that decision.

The arguments and counter-arguments that both sides have submitted to the Supreme Court mostly focus on the reach of Monsanto's patents — specifically, whether Monsanto really can demand a royalty for the planting of any soybean containing its patented genes.

But there's a practical issue, too, and it clearly troubled Richard Young, the federal judge in Indiana who first heard this case. "Monsanto's domination of the soybean seed market," he wrote, means that all the cheap "commodity" soybeans that farmers might use for seed are now encumbered by patents.

Young found Bowman's criticism of the "monopolizing effects" of Monsanto's patents "compelling," but the judge essentially threw up his hands. Finding a remedy, he wrote, would be a matter for policymakers, "but this court does not make policy; rather, it interprets and enforces the law, which, in this case, does not support Bowman."

It will be interesting to see whether the Supreme Court decides to wade into this policy question. The case won't be heard, or decided, until sometime next year.

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