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Jessica Chesher

Managing Editor


Innovation eReview
IP Law Watch: Sumpreme Court Case Bowman vs. Monsanto

Supreme Court Case Bowman vs. Monsanto

Late this month, the Supreme Court heard the oral argument for Bowman vs. Monsanto, the case of a 75-year-old farmer, Vernon Bowman, against the world’s largest seed company, Monsanto. Although the case is specifically about patents held for genetically modified seeds, the implications of the ruling are thought to reach well beyond just agriculture to fields from medical research to software.The issue is whether Monsanto’s patent on seeds lasts beyond the first generation of the product. Farmers who buy seeds from Monsanto, such as the soybeans containing the Roundup Ready gene which makes plants immune to the herbicide Roundup, must sign an agreement with the company not to save the seeds. This ensures that farmers who want to use the hugely popular technology, used in more than 90 percent of the nation’s soybeans, must each year buy new seeds from Monsanto.

In Mr. Bowman’s case, he bought and planted patented seeds from Monsanto for his first crop. Then, he decided to plant a more risky, late season crop. He wanted to use cheap seeds because of the risk and went to a grain elevator where soybeans are sold typically for feed, milling and other uses but not as seed. As the majority of farmers use Monsanto’s patented seed technology it was likely that the seed they sold to the elevator would also contain the Roundup Ready gene even though it wasn’t identified as such. The second crop was successful and Bowman kept the seed generated to be used the following year, a pattern he repeated until 2007 when Monsanto sued for patent violation.

An Indiana federal court sided with Monsanto, awarding the company $84,456 for the unlicensed use of Monsanto’s technology. This ruling was upheld in the federal appeals court in Washington that handles all appeals in patent cases, with the court stating that farmers cannot replant Roundup Ready seeds without violating Monsanto’s patents.

At the heart of the matter is the legal question, does a patent right for self-replicating technology expire after an authorized sale? Bowman contends Monsanto’s rights were exhausted since his seeds bought from the elevator were second-generation while the seed company argued agreements signed by farmers stated that seeds could not be sold for planting. As this decision may also apply to technology that is easily replicated like live vaccines, DNA used for research, and some types of nanotechnology, many organizations have filed briefs in support of Monsanto’s position.

Universities, farmer groups like the American Soybean Association, BSA/The Software Alliance, and the Justice Department are all supporting Monsanto’s argument. Critics, meanwhile, believe that big biotech companies have a stranglehold over farmers leading to rising seed prices and a lack of non-genetically engineered high-yielding varieties.

Monsanto argues that allowing farmers to replant seeds that result from the original crop with their technology is infringing. During the oral arguments this seemed to supported somewhat when Chief Justice Roberts asks Bowman’s attorney, Mark P. Walters, “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?”

The ruling for this case is expected in June, although the majority of public opinion seems to be that the court will rule in favor of Monsanto based on the hearings.

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