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Seeding Authority: Monsanto Can Round Up Infringers
The National Law Journal
The U.S. Supreme Court has for the second time in about as many months addressed an important issue of intellectual property. This is unsurprising, given that advances in technology have transformed such goods into the dominant commodity of tomorrow (if not today).
In Bowman v. Monsanto, the court analyzed whether a farmer could plant Monsanto-brand soybean seeds that were mixed in with others he bought from a third party, grow the soybeans and then replant seeds from those newly grown plants to perpetuate his supply. Monsanto objected to the last step for its patented seeds and sued Bowman.
Monsanto’s soybean seeds aren’t the ordinary drug-store variety. Monsanto genetically modified its seeds so that the ensuing plants could survive exposure to Monsanto’s own weed-killer, Roundup, because weed killers are far from perfect in divining which plants are deserving of chemical destruction and which we intend to consume for nourishment. So, if farmers want to spray with Monsanto’s Roundup, they unsurprisingly would do well to also purchase Monsanto’s companion seeds that produce plants that will survive Roundup exposure.
To capture the value of all this technology, Monsanto patented its seeds. In addition, Monsanto sold only to farmers who agreed to a special licensing agreement that allows them to plant the purchased seeds in one (and only one) season.
Bowman is a Midwest farmer. He purchased soybeans intended for consumption from a third-party purveyor. But Bowman had different plans. He planted the seeds instead. Bowman then sprayed them with herbicides and followed a cycle of growing plants and replanting some seeds.
Monsanto sued Bowman for patent infringement. The company successfully asserted that by creating new seeds, Bowman made unauthorized copies of patented goods—the seeds. And, predictably, Bowman raised patent exhaustion as a defense. This is the valid claim that purchasers of patented goods can do with those items as they please. True. But that does not include creating a new copy of that item and selling it. So, although someone can buy a record album (remember those), he cannot sell homemade copies at the weekend flea market.
But Bowman replied with a fairly subtle and important argument—that it was not he who copied the seeds, it was Mother Nature. After all, seeds are inherently self-replicating. How can he, argued Bowman, be blamed for letting seeds do what they do? Indeed, in a twist of fate, Monsanto has since been sued in a different case for allowing its nonmarketed Roundup-ready wheat to contaminate nongenetically modified crops destined for the European Union (which stringently regulates GMOs). Monsanto’s response: The wheat bred on its own.
The Supreme Court gave Bowman’s biology argument very short shrift—unfairly so. Unlike seeds, patented goods typically aren’t designed to produce new versions of themselves. Mind you, Bowman’s actions were not serendipitous. He was looking to reproduce seeds—and ones that would survive chemical spraying, no less. And while it’s hard to say where to draw the line—as the high court tacitly acknowledged with its proclamation that the decision is “limited” (a description often provided when the import of a ruling is otherwise seemingly the opposite)—the court could have done more to confront the tangled and nuanced issues manifest with patenting biological goods.
Many issues now present: Under the court’s ruling, if a retiree decides to grow vegetables from seeds saved from previous growings, spray the plants with weed killer and sell the produce at the farmers market (not organic, of course), he might be subject to Monsanto’s wrath. Equally, growers in Third World countries who get a hold of seeds that turn out to be patented might owe Monsanto some big dollars if they do as they have always done—that is, keep some of the new seeds from the harvest to plant the following year.
Some of these problems might not materialize, however, if major seed producers/chemical companies employ genetic-use restriction technology, also known as suicide seeds. With these genetically modified seeds, the ensuing harvest is sterile. So there is no concern of second-generation seed planting. But this innovation poses a host of other legal, scientific and social concerns. Indeed, Monsanto has pledged in the past not to commercialize such technology. But while Monsanto is the biggest seed producer, it’s not the only one. And if generationally delayed sterile seeds make it to market, we can only guess as to what the court will do with the farmer who inevitably figures out a way to break that code.
Ultimately, only time will tell the full impact of this decision. It might turn out to be a relative nonevent. Or it might portend technology-related litigation proliferating like rabbits—well, nongenetically modified, nonpatented rabbits, not subject to a restrictive licensing agreement, that is. We shall see.
Robert Steinbuch is a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law.