Indiana Farmer Takes on Seed Behemoth Monsanto; Justices Skeptical of Farmer's Claim

WASHINGTON, Feb. 19, 2013 -- Vernon Bowman travelled to Washington from his Indiana farm to hear the Supreme Court justices discuss his challenge to seed behemoth Monsanto, but the 76-year-old found himself seated too far back in the chamber today to follow the arguments.

But he reiterated what his lawyer had argued: He said the seed company was wrong when it sued him in 2007 for patent infringement.

"I wouldn't have dreamed it would come to the Supreme Court," Bowman, dressed in a suit and windbreaker, told reporters after arguments.

At issue is a dispute over the patent for a soy bean seed developed by Monsanto that is resistant to the powerful weed killer Roundup.

Farmers pay a premium price for the seeds and enter into a contract with the company. Farmers who use the special seeds must buy new seeds for subsequent planting seasons.

Monsanto argues that the restrictions are necessary to protect the company's investment and its patented technology.

According to Monsanto, the seed is now being used in more than 90 percent of soybeans grown in the United States. But its popularity has also generated lawsuits: By 2010, Bowman's lawyers say, Monsanto had filed 136 infringement lawsuits against 400 farmers and 53 small businesses.

For years, Bowman has purchased the seeds from Monsanto for his first crop and he has abided by the technology agreement.

But like some other farmers, he sometimes plants a second crop of soybeans in a practice called "late season planting." Because the late season planting is risky due to a short growing time and the threat of drought, Bowman didn't want to invest in the expensive soy bean seed for the second planting.

He had an idea: He would save money and buy a mix of unlabeled seed from a grain elevator, hoping that most of it would be Roundup resistant. After harvesting that crop he would save the progeny and replant it.

"I didn't look at it as a loophole," Bowman said outside court today. He said the Monsanto patent was abandoned once the soybean reached the grain elevator.

Bowman did not hide his actions from Monsanto, asking the company to provide legal guidance.

In 2007 he wrote to the company: "I have been buying soybeans from an elevator for planting after wheat. There is no way of knowing what variety I have planted. However, most of the soybeans I have purchased turned out to be resistant to Roundup."

In 2007, Monsanto sued Bowman for patent infringement. Bowman's lawyers argued that the patent does not cover the purchase from the grain elevator. In the highly technical lingo of patent law Bowman's lawyers say the patent is "exhausted" once the patented article is sold.

A lower court entered a judgment of $84,456.20 in Monsanto's favor.

Inside the Supreme Court today, several of the Justices seemed skeptical of Bowman's claim.

"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 they want?" Chief Justice John Roberts asked Bowman's lawyer, Mark P. Walters.

Walters said Monsanto's theory is that any farmer who grows a soy bean seed is "infringing the patent but for the grace of Monsanto. And that's a lot of farmers in this country, when we have over 90 percent of the acreage" that uses the so called "Roundup ready" seeds.

He reiterated that his client had always abided by the rules for his first planting, but chose to save money and go to the grain elevator for the risky second planting.

Several of the justices focused not on the purchase of the seed from the grain elevator, but the replanting of those seeds for subsequent crops.

"You know, there are certain things that the law prohibits. What is prohibited here is making a copy of the patented invention. And that is what he did. So it's generation 3 that concerns us," Justice Stephen Breyer said.

"The Exhaustion Doctrine permits you to use the goods that you buy," Justice Sonia Sotomayor said. "It never permits you to make another item from the item that you bought."

Assistant to the Solicitor General Melissa Arbus Sherry argued on behalf of the Department of Justice in support of Monsanto.

"If the concept is the sale of a parent plant exhausts the patent holder's rights not only with respect to that seed but with respect to all the progeny seed," then patented protections would be eviscerated, she argued.

Monsanto lawyer Seth P. Waxman said the company would never have commercialized its invention and "never would have produced what is, by now the most popular agricultural technology in America" if the patent had been so easily exhausted.

Supporters of Bowman say the case highlights a troubling and dangerous situation in which a handful of large agrichemical corporations own a large share of seeds.

"The essence of the case is this: who should control and own seeds, the very product of life," said Debbie Barker, whose group Center for Food Safety has filed a friend of the court brief on behalf of Bowman. "Corporations are saying that they own seed, but in fact seeds have been bred, exchanged and saved by farmers over the centuries."

But Scott McBride, a partner at Chicago-based law firm McAndrews, Held & Malloy, filed an amicus brief on behalf of universities eager to ensure innovative biotechnology continues to be made available for the public benefit.

"If the Supreme Court were to side with Bowman, existing biotechnology patents would be devalued, and the incentive to innovate in biotechnology going forward would be severely harmed," he argued.

The Supreme Court decision could affect many areas of biotechnology, including vaccines, DNA and treatments for cancer, he said.

As for Bowman, he says he's not afraid of losing.

"I know it's a possibility," he said. "I have one good thing going for me: I'm poor as nothing, I was lucky when they brought a suit against me that I was broke anyway. "