THE U.S. Supreme Court heard oral arguments Feb. 19 in Bowman vs. Monsanto, a case that hinges on the extent of control the developer of genetically modified seed can exert through multiple generations of seed.
Vernon Hugh Bowman, a 75-year-old Indiana grain farmer, observed as the U.S. Supreme Court weighed the arguments regarding his right to plant and use seeds that he purchased legally at a grain elevator, which bought them from farmers who had, with Monsanto's authorization, used Monsanto's genetically modified seeds to grow their soybean crops.
Bowman challenged the enforceability of Monsanto's patent rights after taking the unconventional step of buying soybeans containing the patented technology from a local grain elevator and, from 1999 to 2007, repeatedly planting, cultivating and harvesting them to create his own supply of soybeans containing the technology.
Monsanto claims that Bowman infringed its patents on herbicide-resistant plants and seeds by using the grain elevator-purchased seeds to grow his soybean crops.
Bowman asserts that Monsanto's sale of the original seeds to authorized purchasers exhausted the company's patent rights and that it, therefore, cannot enforce its patents against second-generation and later seeds that resulted from planting the original seeds.
What's at stake?
Monsanto's arguments to the court underscored the role patent rights play in enabling innovation in biotechnology and other fields where breakthrough discoveries require substantial investments in research and development that depend on the protections afforded under U.S. patent law.
William H. Lesser, an expert on intellectual property and patents for plants, seed and animals and a professor of science and business at Cornell University, said, "A decision against Monsanto will have a significant chilling effect on private investment in ag biotechnology. Because soybean seed reproduces true to type, if seed is saved and replanted, Monsanto would be in a losing competition with farmer-saved seed after one or two seasons. Private investment will largely come to a halt."
In the agriculture sector alone, Monsanto and its competitors are investing billions of dollars annually on research and development for agricultural advancements and pursuing novel approaches through plant breeding and biotechnology to make crops higher yielding and more resistant to various environmental stresses.
"One can predict, with confidence, that the implication for the Monsanto case is similar to an issue which was dealt with in 1930. Prior to that time, it was legal to regenerate and sell asexually propagated plants -- roses, tulips, fruit trees -- and since they are identical clones, there was little opportunity for breeders to recover their costs. The Plant Patent Act of 1930, the first law worldwide to provide patent protection for plants, was passed to provide breeders the same rights and opportunities as the inventors of mechanical inventions," Lesser added.
Monsanto said the case highlights the crucial role patent protection plays in fostering and protecting U.S. innovation across a broad range of industries, including agriculture, medicine, computer software and environmental science.
A number of amicus curiae ("friend of the court") briefs were filed urging the Supreme Court to uphold the lower courts' rulings in favor of Monsanto. Briefs from several farm groups highlighted the importance of patent protection in supporting agricultural innovation, which continues to bring about higher-yielding crops that are better equipped to withstand increased environmental stresses.
The Supreme Court is expected to decide between now and July as to whether Bowman had a legal right to save seed and replant Monsanto's patented technology. Bowman's case was previously thrown out of the U.S. Court of Appeals for the Federal Circuit in September 2011. If he loses, he will be asked to pay fines of more than $80,000.
Monsanto has filed 145 lawsuits in the U.S. since 1997 -- an average of about 11 per year. To date, only nine cases have gone through full trial. In each instance, the jury or court decided in Monsanto's favor, the company said.
According to Bloomberg News, Justice Stephen Breyer seemed to agree with Monsanto during last Tuesday's hearing and told Bowman's lawyer, "What (the law) prohibits is making a copy of the patented invention, and that is what he did."
Justice Elena Kagan added that without strong patent protection, "Monsanto would have no incentive to create a product like this one."
The Associated Press also reported that "Chief Justice John Roberts questioned 'why anyone in the world' would invest time and money on seeds if it was so easy to evade patent protection."
Bowman's lawyer contended that Monsanto has used patent law to bully farmers.