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The GMO Fight Rages On: Implications of Bowman v. Monsanto

Lonnie Shekhtman
| Friday February 22nd, 2013 | 18 Comments

SoybeanOn Tuesday, the U.S. Supreme court heard arguments from defenders of a 75-year-old Indiana farmer, Vernon Hugh Bowman, and agricultural biotech giant Monsanto. The issue at hand centered on a principle in patent law known as patent exhaustion, which limits how long patent holders can control the use and sale of an item.

The trouble for Bowman started when he harvested soybeans grown from common grain he purchased from a local grain elevator, which is legally limited to selling grain to farmers only for non-planting purposes. What they do with the seeds after they purchase them is nobody’s business … or was, that is.

Bowman’s grain turned out to be mixed (not uncommon) with Monsanto’s patented “Roundup Ready” seeds, which are genetically modified to resist the company’s herbicide, or weed killer, “Roundup,” by killing weeds while sparing the crop.

By the time Bowman harvested his crop, he realized he had been growing Monsanto’s patented seeds because he had used Roundup, which didn’t kill his crop. He decided to keep the grain from his harvest to plant another generation of soybeans the following year, which is not allowed under Monsanto’s contract with customers. Since Bowman bought the grain from a grain elevator, which Monsanto hadn’t indicated wasn’t kosher, he says he didn’t think he was doing anything wrong.

But according to Monsanto, he was. The company sued him for patent infringement in district and appellate courts, winning both cases. Bowman, who’s “not intimidated easily” and “wants to fight,” according to his attorney Mark P. Walters, was undeterred and decided to take the case to the country’s highest court.

In front of the U.S. Supreme Court this week, Walters argued that Bowman is protected under the patent exhaustion doctrine because Monsanto can’t lay claim to grains that it didn’t license directly to a customer. Plus, soybeans are different from other technologies in that that they’re living organisms and self-replicate in normal use, so Bowman wasn’t “copying” them, per se.

Monsanto thinks he was and that he infringed its patent because he used its GM seeds without paying the licensing fee. The company wants to be fairly compensated for its technology, given that it spends $2.6 million per day on R&D, according to its website.

The court will present a decision by June. It will have huge implications not only on what’s patentable and for how long, but also on the question of who controls our food supply. For now, it’s mostly large corporations, which are typically protected by courts in cases like these, says Marion Nestle, book author, blogger and professor in the Department of Nutrition, Food Studies, and Public Health at NYU. (Nestle also said she’s not optimistic that the farmer will prevail in this case.)

According to a 2011 U.S. Department of Agriculture (USDA) study, 72 percent of corn seed and 55 percent of soybean seed (biggest crops in the U.S.) came from the top four producers of these seed varieties in 2007: Monsanto, Dupont/Pioneer, Syngenta, and Dow. Those percentages are likely higher today.

The USDA also estimates that approximately 90 percent of U.S. corn and soybean seeds are genetically modified, which, according to biotech giants, should increase yield and pest resistance, thereby lowering costs to farmers.

But this last point is debatable, considering that consolidation in the seed industry has led to higher input prices; licensing structures that require farmers to pay seed producers every time they plant a new generation of the same seed; and weed mutations, or “superweeds,” that are becoming resistant to Monsanto’s GM seeds and herbicides, leading to additional costs for farmers.

Sounds rough. So why aren’t farmers defecting back to conventional seeds?

For a couple of reasons: first, farmers, especially grain farmers, Bowman said, are “notoriously independent and highly competitive.” This is because they get only one paycheck per year, he explained, in fall when they harvest their crops.

When Monsanto’s Roundup Ready seeds came to market in 1996, they didn’t necessarily increase yield, Bowman said, but they did allow farmers to farm a lot of acres more easily. So farmers had to use the new technology to compete with their neighbors.

Bowman has a great metaphor for this phenomenon: “If you disliked a doctor very much, but every time he operated on a patient that had cancer he cured them, you would go to him even though you hated his guts.”

Another reason farmers aren’t using different seeds, according to Genna Reed, researcher at Food & Water Watch, a consumer rights NGO, is that industry consolidation doesn’t leave farmers with many options. In fact, as a result of a landmark 1980 Supreme Court decision that made GMOs patentable, corporations filed 1,800 patent submissions for genetic material of seeds and plants. Also, the four biggest chemical companies mentioned earlier quickly jumped into the seed production fray by acquiring existing seed firms. At least 200 independent seed companies were bought out and consolidated from 1996 to 2009, according to a new report by the Center for Food Safety and Save the Seeds.

This Supreme Court case, Diamond v. Chakrabarty, also turned centuries of farming practices on their head, according to Reed, privatizing what was once a freely exchanged resource available in the public domain and for the public good.

“Basically, what Monsanto’s patenting structure has done is taken away the seed-saving structure,” Reed said, which is the practice of saving seeds for use from year to year.

Monsanto doesn’t agree. According to Thomas Helscher, executive director of Commercial Acceptance at Monsanto, farmers have free will when it comes to choosing where to buy their seeds.

“Every year farmers decide what seed to purchase and who to purchase it from,” Helscher wrote in an e-mail. “As an example, there are dozens of varieties of non-patented, non-GM soybean seed available in Indiana [Bowman’s hometown]. Farmers who want this type of seed know where to find it.” According to Helscher’s estimates, “more than 1,000 separate seed companies supply the commercial seed market globally.” It is unclear how many supply the U.S. market.

In an ideal world, Helscher is right. But the real-world situation is clearly much more complicated than he lets on.

Helscher’s contention also neglects the reality of GM seed contamination, which is prevalent among corn and alfalfa and a threat to organic growers, who are not only susceptible to contamination, but also to lawsuits by Monsanto. Presumably, even home gardens are susceptible to contamination, and thus, if the Supreme Court rules in favor of Monsanto, legally liable.

For more food industry news, follow me on Twitter: @kuurlyq.

[Image courtesy of USDAgov on Flickr]

 


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  1. February 22, 2013 at 10:07 am PDT | Dave Shires writes:

    Bowman was quite literally laughed out of the courtroom this week (see nytimes article). The Supreme Court is not going to be sympathetic to this guy.

    There is no question that he bought the grain silo seeds expecting 90% of them to be Roundup Ready, so feigning innocence in that regard is silly. He knew darn well he was breaking Monsanto’s rules. Therefore in current legal construct, Monsanto is obviously in the right.

    However, I do think he’s baiting a genuinely interesting argument.

    The reason that Monsanto is allowed to create legislation that protects their patents (and make no mistake, they create the legislation) is obvious: if they didn’t have legal protection, then their R&D money would be wasted. That seems like a strong argument to ensure that advancements in biotechnology continue.

    The big question, assuming self-replicating material should not be patentable, is how then would biotech fund itself? I’m also making the assumption that biotech is a good thing that farmers want and that gets people fed.

    Ideas? Debate?

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    • February 22, 2013 at 14:13 pm PDT | Lonnie writes:

      You know, I’m really torn on this, Dave. I see both sides. I think you’re right; Bowman knew what he was doing. But he figured he found a loophole, which he did. I wouldn’t go as far as to say that Monsanto is obviously in the right. It’s a legal grey area.

      I don’t think most people expect him to win the case, but a benefit from the publicity around this, from the perspective of anti-GMO folks, is that it will add fuel to the labeling fire.

      Yes, we don’t want to stifle innovation. More R&D is good, whether you’re a GMO fan or foe. But there have to be other ways to fund R&D than making people sell their souls to the devil. In this particular case, what if Monsanto updated its contract? What if it charged for three generation of Roundup Ready seeds and then released them into the public domain? The company doesn’t seem to be too interested in improving its brand image, which says something to me.

      Wouldn’t it be interesting to see the real #s behind how much it pays its execs vs. how much it spends on R&D?

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      • February 23, 2013 at 6:47 am PDT | RP Siegel writes:

        The irony of GM foods is that farmers like them for convenience (with the caveats already mentioned) but consumers don’t. Therefore if they are labeled, people will stop buying them and the whole thing will come crashing down There will still be a market for industrial uses, but not for for a large percentage of food consumers. Also missing from this discussion are the biodiversity implications which are huge.

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        • February 23, 2013 at 9:55 am PDT | sick and tired writes:

          i dont like the idea that the gmo could contaminate the growing of organic seeds too

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        • February 25, 2013 at 21:35 pm PDT | Lisa writes:

          They already are. They cross pollinate with native crops and as a result indigenous plants becoming extinct. Google Mexico indigenous corn.

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  2. February 22, 2013 at 12:16 pm PDT | Karnell writes:

    I’d like to actually hear from farmers what they think of this. I mean, this is one guy complaining. Do the majority of farmers think of Monsanto as a partner they’d rather be rid of? Do the majority care about saving seeds? I’m just playing devils advocate here, but the only people I ever hear complaining about it are urban folks.

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    • February 22, 2013 at 13:59 pm PDT | Lonnie writes:

      Very good point, Karnell. That would be a good follow up story (and probably will be). The bottom line seems to be that they do like the technology, it’s just the monopoly prices and restrictive contracts that are a problem. Maybe we’re not hearing much from them because a lot of farmers–especially current Monsanto customers–don’t want to talk because they’re afraid of the repercussions. That’s what I hear, at least.

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    • February 28, 2013 at 14:26 pm PDT | mike homan writes:

      Here’s something to think about for all of you who support monsantos’ patents. If you allow for the patent to reach beyond the initial consumer, then you have given up the rights to 90% of the nations soybean crop. As stated above 90% of the soybeans available for planting are controlled by some sort of patent or alteration. These companys want paid when you buy the seed, and then paid again for the tech fee. So when a farmer purchases seed he in reality is just renting the seed. So when too few companys own all of our soybeans, how long do you think it will be till they decide to raise the tech fee or just not allow for farmers to rent the seed, causing a false shortage of plantable seed. This will allow the seed companys to name their price and collect huge profits while controlling our nations food supply. Pretty sure that is called a monopoly. Mean while the courts will be standing back forced to defend the new monster they have created. And as for the music industry, when you buy used cd’s and cassetts at a gararge sale. Who did you send the copyright fees too? Oh thats right it was paid by the initial owner! You paid to own them not just rent them from the singer/songwriters. Bin run beans are used products!!!!!!!!!!!!!!!

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  3. February 22, 2013 at 17:50 pm PDT | Robert Wager writes:

    Another point not made in this article is not only GM crops are at risk here. All certified seed R&D would also disappear if Bowman wins. Imagine if a musician allowed anyone to make copies of their music after the record was released. imagine if all computer programs were allowed to be reproduced etc. This ruling is about IP rights and more not just GM crops.

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    • May 23, 2014 at 6:17 am PDT | axeniya writes:

      In Ukraine, for example, there are companies that retain seeds, checked for quality, is transported to the desired country. And they say that there is absolutely no GMOs. Here is an example http://agro-log.com/sellings/

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  4. February 22, 2013 at 18:38 pm PDT | Nick Aster writes:

    This is a pretty fascinating case. Bowman doesn’t have a chance at winning this case, but as discussed below the idea of patenting something self replicating is genuinely controversial.

    The parallel to music is pretty interesting, but apple’s reasonably priced iTunes and increased revenue from concert touring has pretty much made music copying a moot point (much to the chagrin of the traditional music industry, RIP).

    Could GMO Patents find a similar fate? I can’t see it happening soon, but “bio-hackers” are an emerging phenomenon – imagine in a few years open source GMO technology.

    I’d love to sit back and watch the fireworks when that happens!

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  5. February 23, 2013 at 13:35 pm PDT | MarkISutherland writes:

    I have a lot of trouble believing anything Bowman claims since he “found out” his crops were Roundup Ready after he sprayed Roundup on his crops and they didn’t die. No farmer in their right mind would ever spray Roundup on their crops unless they knew they were Roundup Ready, because if they are not their entire crop will die. Bowman had lots of choices in seed, both GM and non-GM, but if he wants Roundup Ready he needs to play by the rules. He didn’t and he got caught stealing. I don’t trust him or his claims.

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    • February 27, 2013 at 8:59 am PDT | Dave Shires writes:

      I don’t think anyone disagrees with you. Of course Bowman knew those seeds were Monsanto seeds. The point is he did it on purpose to bait the lawsuit for the purpose of making the case heard.

      In that regard, it is an interesting perspective. Why should self-replicating, living, organisms be patentable? So far the only reason that’s been offered is to protect corporate profits. I’m not saying that’s right or wrong, but it’s definitely worth thinking about more deeply than the courts seem to have bothered with!

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  6. February 25, 2013 at 17:47 pm PDT | Frank Churchill writes:

    Let sing a song shall we.

    http://ovisarie.com/old-monsanto/

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  7. February 27, 2013 at 8:11 am PDT | CarltonJ writes:

    A more subtle question is, if pollen from a Monsanto patented field blows naturally onto another field, why should Monsanto sue the receiver for violating the patent? Cf the Salem Capitol Press, a West Coast ag weekly. Monsanto should pay the second field holder for contaminating their crop. This whole patented gene thing is going way too far.

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    • February 27, 2013 at 9:01 am PDT | Raichle writes:

      Clearly, they shouldn’t But I’m not aware of any real evidence that that actually happens… are you?

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  8. March 01, 2013 at 7:11 am PDT | Alberto Brian Vega writes:

    I’ve enjoyed reading the comments here! A few of my own points:
    1. Bowman undermines his reasoning for using GMO seeds with “farmers are highly competitive”. That sounds like it has less to do with farmers specifically and More to do with business persons in general. Instead of aiming for contentment, this culture aims for winning at all costs. Monsanto presents to this culture a fair challenge of greed. Now, I’m not saying Monsanto is a fair company or that they don’t have designs on world domination but Bowman’s description of farmers paints them in the same light: were he at the head of Monsanto, Bowman might very well do just what they’re doing as well as other Made To Dominate things.

    Still, I’m glad the case exists to force further discussion on food, science, and the ethics of both. To stand up for science ad IP is to default to Monsanto; to stand up for constraining companies via gonvernment/laws is to default against Monsanto. To support Bowman is to support the Farmer as Tycoon and to see him for what he is and call him out (notwithstanding your stance on the case) is to recognize you might really be against “conventional” growers and do more to find out how you can support “healthier” practices today. Do we support companies making max profit, whatever the cost to others? How about individuals doing the same? Are we concerned about feeding millions and unmitigated population growth or about “real” food reaching the market place? What’s our big picture? Meanwhile, I’ll be looking for how the SC frames their judgement.

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    • March 01, 2013 at 16:13 pm PDT | Lonnie writes:

      Thanks for your comment, Alberto. Farmers are competitive as a matter of survival in most cases, not greed. They make very, very little money, particularly when they have to pay every season for Roundup Ready seeds, Roundup, and when pests become resistant to Roundup, for more chemicals to kill them. This is why there are so few farmers left. It is far from a profitable profession.

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