Food
4:28 am
Mon February 18, 2013

Farmer's Fight With Monsanto Reaches The Supreme Court

Originally published on Mon February 18, 2013 8:35 pm

This week, the Supreme Court will take up a classic David-and-Goliath case. On one side, there's a 75-year-old farmer in Indiana named Vernon Hugh Bowman; on the other, the agribusiness giant Monsanto.

The farmer is fighting the long reach of Monsanto's patents on seeds — but he's up against more than just Monsanto. The biotech and computer software industries are taking Monsanto's side.

Bowman also is battling a historic shift that's transformed the nation's seed business over the past 20 years.

Despite all that, Bowman seems remarkably cheerful about his situation. "Confrontation does not take a toll on me!" he says. "You and me can argue about the Bible; we can argue about religion. I'll pound my fist and we can argue all day, and I won't lose a bit of sleep at night!"

Bowman is leaning back in an easy chair, where he says he also sleeps at night. He lives alone in a modest white frame house outside the small town of Sandborn, in southwestern Indiana.

Out back, there's an array of old farm equipment collected during decades of growing corn and soybeans.

Bowman is wearing a Monsanto hat. It's probably an ironic gesture, but in fact, he's been a pleased and loyal customer of the company's seeds. He thinks the genes that Monsanto inserted into soybeans are just great. They let soybeans survive the country's most popular weedkiller: glyphosate, also known as Roundup. He can spray that one chemical to get rid of the weeds without harming his crop.

"It made things so much simpler and better. No question about that," he says.

Bowman uses these "Roundup Ready" soybeans for his main crop, which he plants in the spring, and he signs a standard agreement not to save any of his harvest and replant it the next year. Monsanto demands exclusive rights to supply that seed.

But here's where Bowman got into trouble: He also likes to plant a second crop of soybeans, later in the year, in fields where he just harvested wheat.

Those late-season soybeans are risky. The yield is smaller. Bowman decided that for this crop, he didn't want to pay top dollar for Monsanto's seed. "What I wanted was a cheap source of seed," he says.

Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. "They made sure they didn't sell it as seed. Their ticket said, 'Outbound grain," says Bowman.

He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. "I couldn't imagine that they'd give a rat's behind," he snorts.

Bowman told his neighbors what he was doing. It turned out that Monsanto did, in fact, care.

"He wanted to use our technology without paying for it," says David Snively, Monsanto's general counsel.

Monsanto took Bowman to court, and Bowman was ordered to pay Monsanto $84,000 for infringing the company's patent.

Bowman appealed. To the surprise of many, the highest court in the land agreed to hear his case. "I'm not a-gonna give in! Because I think I've done nothing wrong!" says Bowman.

His lawyers, who are representing him for free, have come up with a legal argument for why he did nothing wrong. If they succeed in persuading the court, it could pull the rug out from under Monsanto, and some other industries, too.

Bowman's lawyer, Mark Walters from the firm of Frommer Lawrence and Haug, says there's a very old principle in patent law: If you buy something that's covered by a patent — let's say it's a cell phone — you own it, outright. "You're allowed to put it on Craigslist and sell it, you're allowed to use it for your 'ordinary pursuits of life' is the quote from some of the old cases that we're relying on."

It's a valuable principle, Walters says. "Imagine how commerce would work if patents owners could come out of nowhere and surprise purchasers and tell them, 'Oh, you need to pay me a royalty, because I own a patent on this thing that you just bought.'"

So according to this principle of "patent exhaustion," Bowman bought that seed and can do with it what he wants. Patent holders have no right to stop him.

Monsanto's David Snively, for his part, says this argument completely misses the point. Yes, we can buy an iPhone and do whatever we want with it, "but we're not going to go out and make copies of the iPhone and put Apple out of business," he says.

That's what Bowman did, says Snively. When he planted this patented seed, he made copies of it.

In fact, he says, if farmers were allowed to do this with patented seeds, the patents would be worthless.

A number of industry organizations have come to Monsanto's defense, including the Biotechnology Industry Organization.

Hans Sauer, deputy general counsel at BIO, says many biotech products are a lot like seeds. "They are easily replicated. They are difficult to make, but once created they are relatively easy to reproduce." The same is true of computer software.

But these are new technologies. Farmers' seeds are old; they're the original self-replicating technology, and for centuries, nobody tried to claim them as intellectual property.

That's one reason why Monsanto's patents and lawsuits against farmers have stirred up so much anger and received so much attention.

What's less well known, however, is that the practice of patenting seeds has moved far beyond Monsanto and other biotech companies.

It's standard practice now even among small companies like Great Heart Seed, in Paris, Ill.

Great Heart Seed's warehouse is filled to the rafters with white bags of soybean seed. The company sells 45 different varieties in all. Some grow better in the south, others in the north. Most have Monsanto's Roundup resistance genes, while others do not.

Yet all of these varieties are patented. "Nearly everything out there has a patent on it now," says Nels Kasey, one of the Great Heart's owners.

Twenty years ago, that wasn't the case. Many seed dealers sold "public" varieties that came from breeders at universities like Iowa State or Purdue.

Today, most new varieties come from private companies, and even universities acquire patents on most of the varieties that they do release.

Farmers aren't supposed to save and replant those seeds, either.

Kasey says, the new system gives soybean breeders and seed companies more profits, and a stronger incentive to create and sell even better plant varieties. "I'm really proud of the varieties that we have today. When I started in this company, you had a handful of varieties. Today, there's more money in it, more profit in it, so I can support 45 lines," he says.

Those seeds, though, are also more expensive. Soybean seeds have tripled in price over the past 20 years. And a farmer like Bowman who just wants some cheap, generic seeds can't easily find them.

Bowman can see towering bins filled with soybeans all around southwestern Indiana, but according to the seed companies, he can't plant any of them.

In fact, after Monsanto took Bowman to court, his search for unrestricted seeds took him all the way to Ohio, one of the very few places in the country where the state still distributes non-patented soybean varieties.

Bowman acquired some of that seed — a variety called Dennison — and grew it last year. He saved part of his harvest. Those soybeans are now sitting in an old combine in a shed behind his house.

If the Supreme Court rules against him, Bowman can still use those beans for seed this year.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

LINDA WERTHEIMER, HOST:

This is MORNING EDITION from NPR News. I'm Linda Wertheimer.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne.

The Supreme Court tomorrow will take up what seems like a classic case of the little guy taking on the big one. That would be the agribusiness giant Monsanto on one side, a 75-year-old farmer on the other. The Indiana farmer is fighting the long reach of Monsanto's patents on seeds.

But as NPR's Dan Charles reports in our Business Bottom Line, he's up against more than just one company.

DAN CHARLES, BYLINE: Hugh Bowman lives alone in a modest little white-frame house outside the tiny hamlet of Sandborn, Indiana.

HUGH BOWMAN: I'm an eccentric old bachelor.

CHARLES: Out back he's got lots of old farm equipment from decades of growing corn and soybeans. In his living room there are stacks of files on a couple of rickety card tables - all ammunition for his legal battle against Monsanto. He enjoys an argument, he says.

BOWMAN: Confrontation does not take a toll on me. Me and you can argue about the Bible. We can argue about religion, and I'll pound my fist and we can argue all day. And I won't lose a bit of sleep at night.

CHARLES: Now, you should know, Hugh Bowman is also one of Monsanto's loyal customers. He thinks the gene that the company inserted into soybeans years ago is just great. It lets soybeans survive the country's most popular weed killer, glyphosate, also known as Roundup. So he can spray one chemical to kill all the weeds without harming his crop.

BOWMAN: It made things so much simpler and better - no question about that.

CHARLES: Every spring, Bowman buys some of that Roundup Ready soybean seed. He signs an agreement not to save any of his harvest and replant it the next year, because Monsanto demands exclusive rights to supply that seed.

But here's where Hugh Bowman got into trouble. He likes to plant a second crop of soybeans later in the year, in fields where he just harvested wheat. Those late-season soybeans are riskier; yields are smaller. So Bowman decided for this crop he didn't want to pay for Monsanto's top-of-the-line products.

BOWMAN: What I wanted was a cheap source of seed.

CHARLES: Starting in 1999, he drove across town to a small grain elevator where local farmers drop off their harvested soybeans. And he asked if he could buy some. The people at the elevator said sure.

BOWMAN: They made sure that they didn't sell it as seed, 'cause their ticket said outbound grain.

CHARLES: Bowman knew most of these beans had Monsanto's Roundup Ready gene in them; 90 percent of America's soybeans do. But Bowman did not think Monsanto controlled these soybeans anymore. And anyway, he was getting a motley collection of different varieties - no threat to Monsanto's seed business.

BOWMAN: So I couldn't imagine that they'd give a rat's behind.

CHARLES: Bowman told his neighbors what he was doing. And it turned out Monsanto did care.

DAVID SNIVELY: He wanted to use our technology without paying for it.

CHARLES: David Snively is Monsanto's general counsel. Monsanto took Bowman to court and the court ordered Bowman to pay $84,000 for infringing Monsanto's patent.

Bowman appealed.

BOWMAN: And I'm not going to give in, because I think I've done nothing wrong.

CHARLES: His lawyers - who are representing him for free - have come up with a legal argument for why he did nothing wrong. And if the Supreme Court agrees, it could pull the rug out from under Monsanto and some other industries too.

Bowman's lawyer, Mark Walters from the firm of Frommer, Lawrence and Haug, says there's a very old principle in patent law: If you buy something that's covered by a patent, let's say it's a cell phone, you then own it, outright.

MARK WALTERS: You're allowed to put it on Craigslist and sell it. You're allowed to use it for your ordinary pursuits of life, is the quote from some of the old cases that we're relying on.

CHARLES: The patent, to use a technical term, is exhausted. It's a valuable principle, Walters says.

WALTERS: Imagine how commerce would work if patent owners could come out of nowhere and surprise purchasers and tell them, oh, you need to actually pay me a royalty, because I own a patent on this thing that you just bought.

CHARLES: So it's very simple, Walters says. Bowman bought that seed and he can do with it what he wants. Patent-holders have no right to stop him.

Now, Monsanto's David Snively says this argument completely misses the point. Yes, we can buy an iPhone and do whatever we want with it.

SNIVELY: We're not going to go out and make copies of an iPhone and put Apple out of business.

CHARLES: That's what Bowman did, Snively says. When he planted this patented seed, he made copies of it. You can't do that. In fact, he says, if you were allowed to do this with patented seeds, the patents wouldn't be worth anything.

A number of industry organizations have come to Monsanto's defense. For instance, the Biotechnology Industry Organization, or BIO. Hans Sauer, a lawyer who works for BIO, says many biotech products are a lot like seeds.

HANS SAUER: They are easily replicated. They're difficult to make. They may be very expensive to create in the first place. But once created they're relatively easy to reproduce.

CHARLES: Computer software is easy to copy too. But those are new technologies. Farmers' seeds are old. They're the original self-replicating technology, and for centuries nobody tried to claim them as intellectual property. That's one reason why Monsanto's patents and lawsuits against farmers have stirred up so much anger and received so much attention. What's less well known is that it's not just Monsanto or biotech companies selling patented seeds these days.

Even small companies do, like Great Heart Seed, in Paris, Illinois.

JIM EDMUND: This is our inventory that we've been working on since, what, first of September.

CHARLES: Jim Edmonds, plant manager for Great Heart Seed, is pointing to row after row of white bags filled with the company's soy bean seeds.

EDMUND: We started building this inventory one variety at a time.

CHARLES: Forty-five different soy bean varieties in all. Some grow better in the South, some in the North. Many have Monsanto's Roundup Ready gene, others do not. But Nels Kasey, one of the Great Heart's owners, says all of these varieties are patented.

NELS KASEY: Nearly everything out there has a patent on it now.

CHARLES: Twenty years ago, there were lots of public soy bean varieties that came from breeders at universities like Iowa State or Purdue. Today there are very few and even universities now often get patents on the varieties they release. Farmers are not supposed to save and replant those seeds either. Kasey says it gives soybean breeders and seed companies more profits and more of an incentive to create and sell even better plant varieties.

KASEY: I'm really proud of the varieties that we have today. You know, when I started this business, you had a handful of varieties. Today there is more money in it, but it's because there's more value in it, more profit in it. So I can support 45 lines.

CHARLES: But the other result is seeds are more expensive. Soybean seeds have tripled in price over the past 20 years. And a farmer like Hugh Bowman, who just wants some cheap generic seeds, cannot easily find them.

BOWMAN: I know of no way that I could buy grain off of a farmer and legally plant it.

CHARLES: He can see towering bins filled with soybeans everywhere, but seed companies say he cannot plant any of that. After Monsanto took Bowman to court, his search for unrestricted seeds took him all the way to Ohio, one of the very few places in the country where the state still distributes non-patented soybean varieties.

Bowman picked up some of that seed and grew it last year. He saved part of his harvest. Those soybeans are now sitting in an old combine in a shed out back. So even if the Supreme Court rules against him, Bowman can still use those beans for seed this year. Dan Charles, NPR News.

COKIE ROBERTS, HOST:

Hugh Bowman's dispute with Monsanto is one of many cases the Supreme Court hears this session. Next week the Court is expected to take up the issue of voting rights. Shelby County, Alabama is challenging one specific portion of the Voting Rights Act. That portion makes it difficult for a state or municipality to prove it no longer engages in voting bias and should no longer have to bear federal oversight.

The Court will also hear a case that centers on the Fourth Amendment, which guards against unreasonable searches and seizures. Justices will consider whether states can collect and test DNA from people who have merely been arrested for a crime but not convicted of one.

MONTAGNE: And tomorrow on this program, NPR's Nina Totenberg will tell us about another case pending before the High Court. It explores whether a prisoner has the right to sue the U.S. government over allegations he was sexually assaulted by guards at a federal prison. Transcript provided by NPR, Copyright NPR.

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