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Bowman v. Monsanto could open GM Pandora’s box

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  • The Bowman v. Monsanto case could rip open a GM Pandora’s box, but Monsanto is hoping the outcome brings a degree of legal closure on GM seed patents.

It was only a matter of time; genetically modified seed technology was always destined for a Supreme Court decision.

Having already turned down two similar cases, the Supreme Court’s review of Bowman v. Monsanto will have ramifications well beyond biotechnology and may serve as a patent law benchmark for technological innovation. Monsanto knew this case, or a similar one, would be reviewed eventually by the nine SCOTUS justices.

The case could rip open a GM Pandora’s box, but Monsanto is hoping the outcome brings a degree of legal closure on GM seed patents.

John Bowman, a 75-year-old Indiana farmer, was sued by Monsanto in 2007 over seed patent infringement. In 1999, he had planted Monsanto’s Roundup Ready soybeans early in the season, and wanted to plant a second crop later that same year. But with the second planting, Bowman didn’t buy his seed through conventional means, and instead purchased seed from a local grain elevator. The seed that he bought — labeled as “outbound grain” — was not being sold for planting purposes and is generally used as a feed source for cattle.

Although, the “outbound grain” wasn’t brand marked, 90 percent of Indiana soybeans are Roundup Ready, and Bowman believed he would be getting herbicide-resistant seed. He was exactly right — and repeated the process for a number of years. Monsanto accused Bowman of skirting their licensing agreement and sued him for a breach of their seed patents, even though Bowman’s “outbound grain” was second-generation seed. Monsanto has sued over a hundred farmers in similar circumstances, and again, one of these cases was bound to climb to the top of the U.S. legal ladder.

SCOTUS will decide if Bowman acted legally — and if the Feb. 19 questions put to Bowman’s legal team are a decent indicator, the justices (at least some of them) appear skeptical of Bowman’s position.

Justice Stephen Breyer certainly seemed to tip his hand regarding Bowman’s second-generation seed purchase, “You can feed it to animals, you can feed it to your family, make tofu turkeys. But I’ll give you two that you can’t do: 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.”

And from Chief Justice John Roberts: “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?” (Granted, this is the same John Roberts that seemed to pull an about-face during the health care deliberations.)

Many cheer for Bowman as a “David” fighting “Goliath” and relish the potential damaging impact on the biotech industry. But the simple reality is, without seed technology patent protections, no company (Monsanto or any other) is going to invest hundreds of millions to produce products vital to agriculture and global food security. And agriculture is merely one player on the legal stage: The seed patent issue may set precedents for medical research and nanotechnology.

Agricultural history is rife with legal fights, and Bowman v. Monsanto dredges up the nightmares of Eli Whitney’s cotton gin patent debacle. Whitney’s 1793 cotton gin invention revolutionized agriculture, but it never brought him wealth. His gin was copied in state after state and Whitney could only watch, a true guinea pig for the U.S. patent office.

Whitney’s despair still packs a punch: “Some inventions are so invaluable as to be worthless to its inventor.”

As Bowman v. Monsanto plays out in the Supreme Court, Whitney’s ghost will be watching from the fringe — and likely pulling for Goliath.

Twitter: @CBennett71

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Discuss this Blog Entry 8

Anonymous (not verified)
on Feb 26, 2013

Human history is filled with examples of those who do not want to pay for the fruits of other's inventions, discoveries or labors so they take it. Bowman is just a different version of a home burglar who sees something he desires, doesn't want to pay for it, so he steals it. He's no different than a shoplifter at Wal-Mart. He's no different than a company secretary embezzling company funds. That's why we have the legal system to reign in the dishonest freeloaders who are out to beat the system. As a farmer, I do not support his type in any way as he may make others outside ag think we share his type of thinking. I pay for my crop inputs just like 99.9% of my fellow farmers. And Roundup Ready has made me a better bean farmer so I'm willing to pay for that technology because I well remember what it was like trying to grow beans back in the 80's before Roundup Ready......beans were not fun back then. Bowman is 75 years old so he remembers too......that's why he was searching out Roundup Ready beans to steal.

Anonymous (not verified)
on Feb 26, 2013

Bowman did not steal like a shoplifter of embezzler, that just makes you sound like an ignorant jerk with no understanding of the case... As far as Roundup Ready beans, they have made you a lazy farmer, not a better one...

Randi (not verified)
on Feb 26, 2013

Bowman did not steal like a shoplifter of embezzler, that just makes you sound like an ignorant jerk with no understanding of the case... As far as Roundup Ready beans, they have made you a lazy farmer, not a better one...
Now that I have finished laughing and thinking what an idiot, how has technology made this man a lazier farmer and not a better one. Personally I have never met a lazy farmer that is still in business.

Anonymous (not verified)
on Feb 26, 2013

A lazy farmer? Do you consider a farmer lazy who prefers not to have to rogue fields with his corn knife? Where are you from?

Son, out here in farm country we prefer to "work smart" over working hard. And that approach applies to any business endeavor you may be engaged in your life. Now, you can ignorantly call that lazy but we call it being good farmers.

Anonymous (not verified)
on Feb 26, 2013

The patent office made a decision that GMO's were patentable. No law ever enacted by Congress allowed this and in fact all applicable laws explicitly disallowed them from patenting and created the PVP process. The Patent office made a decision contrary to law to allow patents and some courts have upheld that decision despite the clear prohibition in law.
The PVP process has been in place for many year....
Whether Bowman intended to use Roundup Ready beans or not is beside the point as the seeds should have been placed in the PVP process if Monsanto wished to protect the product legally. Read the PVP legislation.

Anonymous (not verified)
on Feb 26, 2013

No, the patent office did not decide that GMO's were patentable out of thin air ........That concept was introduced in 1991 by the UPOV Convention which forms the basis for recognizing "essentially derived varieties", GMO's being one example. Without such patent protection plant breeders would find other occupations and the seed/crop improvements we are enjoying today would not be posssible.

Anonymous (not verified)
on Feb 26, 2013

So when I buy an apple and that apple is fed to my kid and my kid grows...and has kids ...does the apple company own my grandkids?

Anonymous (not verified)
on Feb 27, 2013

Your apple analogy makes no sense. For it to make sense Bowman would have had to eaten those soybeans he picked up at the elevator........and if he HAD eaten them, or fed them to his animals, or made Indian necklaces out of them there would not have been a problem on any level.

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