You Get What You Pay For: Bowman vs. Monsanto

There’s a case in the Supreme Court right now that’s raising the eyebrows of farmers, scientists, anti-biotechnology advocates, and even software companies. You should care because it involves food (and the research and development done to make our food supply safer and more sustainable.)

The issue at stake is patents on agricultural technology, but don’t let your eyes roll back in your head at the mention of agricultural technology, because this is an important case. It will set a precedent because it centers around seeds  – which self-replicate (or produce a “2nd generation”)– unlike cell phones, music, or other technological items which often come to mind with the words “patent infringement.”

The Background:

75-year-old Vernon Bowman, who farms 300 acres in Indiana planted a second crop of soybeans after he harvested his winter wheat in late June.

To plant these beans, Bowman chose not to buy seed from a reputable dealer, as is customary, but rather to buy cheap, 2nd generation beans from his local grain elevator. These “bin-run” beans are typically used for animal feed and have lower germination rates and yield (Bowman himself has referred to what he bought as “junk.”)

Bowman planted this “junk” and sprayed it with Roundup (an herbicide, which showed that the seeds he planted contained patented Roundup Ready technology, which allows farmers to spray their entire fields with Roundup and kill weeds, but not the crop itself). The crop from this “junk” turned out well enough that Bowman continued to save the seed from these fields and plant it, (supplementing with more bin-run seed from his local elevator.)  He continued this practice from the late ‘90s until 2007.

Vernon Bowman. Photo Source: The New York Times.

The Aftermath:

Monsanto, the maker of Roundup Ready technology, charged Bowman of infringing their patent rights by planting beans that contained their technology without paying for it. A  judge in Indiana ordered Bowman to pay Monsanto more than $84,000. The United States Court of Appeals for the Federal Circuit upheld that decision and said  Bowman had infringed Monsanto’s patents.

In late Febraruy, the Supreme Court decided to hear Bowman’s case. Initial comments from the Supreme Court Justices appear uphold the lower courts’ rulings.

Chief Justice John G. Roberts got to the heart-of-the-matter very quickly: “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”

Justice Stephen Breyer agreed and said that Bowman could use the seed, but not for the purposes he was using it for.

“You know there are certain things that the law prohibits,” he said. “What it prohibits here is making a copy of the patented invention. And that is what he did.”

Justice Stephen G. Breyer said that there were lots of things Bowman could do with his junk seed.

“You can feed it to animals, you can feed it to your family, make tofu turkeys,” he said. “But I’ll give you two that you can’t do,” he went on. “One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”

The Reality as I See it:

To his credit, the junk seed Bowman bought from his local elevator that contained Monsanto’s patented technology was not labeled. It did not come with an overt sticker warning him not to plant it. HOWEVER, with over 90% of seed in the U.S. containing patented herbicide-resistant technology, Bowman probably had a hunch that the seed he purchased from his elevator contained this technology– a hunch that that he verified by spraying his crop with Roundup FOR 7 YEARS while never paying for the technology that was keeping his crop from dying while killing the yield-robbing weeds in his beans.

This isn’t about Monsanto “bullying” small farmers. And this isn’t just about Monsanto – companies like DuPont Pioneer, Syngenta, BASF, etc., all have similar technology agreements that specify that growers can’t reproduce their patented technology.

I don’t like paying tech-fees for seed either, and I am very concerned about the rising cost of seed and inputs in general. But, farmers ARE NOT OBLIGATED to Monsanto’s patented Roundup Ready seed. And I do see this is a case of “you get what you pay for.” If you want to use the technology that Monsanto invests more than $2.6 million per day in, then you have to pay more for it.

Patents in general protect scientific research and development. Without patent protection for this technology, it wouldn’t just hurt large agricultural for-profit companies  - it would also devastate the research done by universities around the county.

 ”I think the case has enormous implications,” said Dermot Hayes, an Iowa State University agribusiness and economics professor who believes Monsanto should prevail. “If Monsanto were to lose, many companies would have a reduced incentive for research in an area where we really need it right now.”

More than 50 organizations have filed legal briefs hoping to sway the high court into siding with Monsanto.

However, there is still plenty of support for Bowman. George Kimbrell and Debbie Barker from the Center for Food Safety published ”Seed Giants vs. U.S. Farmers,” and wrote an op-ed in the LA Times questioning Monsanto’s patent rights. Their views can be summed up by a quote from the director of their organization:

“Through a patenting system that favors the rights of corporations over the rights of farmers and citizens, our food and farming system is being held hostage by a handful of companies,” said Andrew Kimbrell, executive director of the Center for Food Safety, one of the groups supporting Bowman. “Nothing less than the future of food is at stake.”

To Mr. Kimbrell, I say this: no one is holding me hostage. I carefully select my seed in order to achieve the best yield I can, and I have many options. You’re right, the future of food is at stake. In order continue to feed growing world populations as sustainably as possible, we must continue to invest in the research and development that has doubled our yields over the last 50 years. The current patent system protects the results of that research and development, and shouldn’t be compromised for those not willing to pay for it.

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