It is a classic David versus Goliath story. In this instance, David is 75-year-old Indiana farmer Vernon Bowman facing the seemingly insurmountable agricultural Goliath Monsanto.
Ricky Scuderi | Argonaut
Patent Lawyer and University of Idaho alumnus Mark Walters discusses the legal considerations of Genetically Modified Organisms in the UI Menard Law Building Courtroom on Monday. Walters, along with Dario Machleidt, discussed the legal considerations behind GMO’s in terms of agriculture and the future of biotechnology.
At stake is the future of farming in the age of biotechnology and genetically modified crops, and on Monday the lawyers representing Bowman were at the University of Idaho Law School Courtroom to discuss the case, which was heard by the U.S. Supreme Court in February.
UI Law Adjunct Professor Duncan Palmatier, who organized the talk in connection with his patent law class, said Bowman v. Monsanto’s central issue is whether the initial sale of RoundUp Ready soybean seeds exhausts Monsanto’s patent claim and prevents them from collecting royalties for the seeds’ progeny, which include the patented genes.
The RoundUp Ready gene itself is patented by Monsanto, not just the modified seeds created with the gene. Monsanto’s patent expires in 2014, although they will likely make improvements to it and reapply for a fresh patent.
Palmatier said farmers who buy these genetically modified seeds from Monsanto, or a licensed distributor, sign a contract agreeing they won’t keep the seeds from the harvest and instead buy a fresh batch the next year. Farmers are able to sell seeds they get from harvest to local grain elevators.
Mark Walters, who argued the case for Bowman in front of the U. S. Supreme Court, said grain elevators mix the things they get from farmers during the harvest into a concoction they label as outbound grain.
Walters said they can’t label it as seed because it is not pure enough to satisfy regulations. He said farmers looking to get a bit more crop near the end of the growing season will frequently buy outbound grain to use in second plantings because second plantings are risky and buying from grain elevators is cheaper than other options.
Walters said his client bought seeds from Pioneer, a Monsanto licensee, for his first planting and bought seeds for his second planting from a local grain elevator. Bowman noticed the plants that grew from his use of commodity grain exhibited the traits of the RoundUp resistance.
A statement issued by Monsanto on Feb. 19, the day the U. S. Supreme Court heard the case, said Bowman challenged the enforceability of their patents.
“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.”
In an interview with the Huffington Post Bowman
said he doesn’t think he did anything wrong.
“No law was ever passed that said ‘no farmers can’t go to the elevator and buy grain and use it’, so to me they either forced their patent on me or they abandoned their patent by allowing it to be dumped in with non-Roundup grain,” Bowman said.
But because Monsanto’s patents are on the gene itself and not the seeds, Monsanto sued Bowman for $84,456 in damages because the beans that grew contained the patented gene.
Palmatier said the patent laws allowing companies to get patents for biotechnology began with the landmark case decision in Diamond v. Chakrabarty, which gave General Electric the patent for the so-called “oil eating bacteria.”
He said companies like Monsanto took note of this decision when creating their own biotechnology.
Palmatier mentioned the Plant Patent Act when discussing how to patent a plant.
“Plants have been hybridized for thousands of years, people have been taking plants and crossing them with other plants and creating hybrids,” Palmatier said. “That is traditionally what people trying to hybridize soybeans would try to do is hybridize. The Plant Patent Act said once you get this patent for the hybridized plant you can collect royalties for one generation … But Monsanto said we aren’t going to get a patent on the plant, we are going to get a patent on the gene because the Chakrabarty case says we can. Monsanto didn’t get a plant patent for it, they got a regular patent.”
He said regular patents have no restrictions how to collect money for use, but the U.S. Supreme Court has discussed the idea that once a patented product is sold, you can’t stop someone from reselling it.
He said, so in this case, Monsanto collected their fee when the seeds were initially sold, so their patent has been exhausted past the initial dealing.
Walters said the case is all about the right of Bowman to buy the seed on the open market, which is legal under exhaustion.
“Monsanto says we can’t rely on this law called exhaustion,” Walters said. “Exhaustion is the law that allows you to sell your cellphone on Craigslist even though there are patents on it. Because you bought it and you can resell it because you own it. So you can sell it even though there is technology on it that is owned by Apple. The exhaustion doctrine is what allows you to do that.”
Walters said Monsanto is suing to get case law on the books that would essentially make it so that the exhaustion law doesn’t apply to them.
David Snively, executive vice president and general counsel for Monsanto, said the case could jeopardize important innovations in the field of biotechnology.
“The U.S. patent system has played a pivotal role in incentivizing innovation and spurring the advancement of many of our nation’s vital industries,” Snively said. “In this case, this system has supported the discovery and expansion of a novel science that has revolutionized agriculture, enabling growers to produce more food while they also conserve more natural resources. What’s at stake is some of the most innovative research on the planet — not only in agriculture, but in industries from medicine to environmental science that rely on patent systems to make R&D investments economically viable. If companies and universities can’t count on their inventions being protected, few will continue to invest the amounts needed to create a new seed, a new medicine or another new technology.”
Walters said the GMO trend is already predominant in agriculture and will keep happening regardless of what the court decides. He said he thinks that the issue of GMO’s could be better regulated under contract law, rather than patent law.
“It makes more sense to use contract law,” Walters said. “You still need a patent, but Monsanto thinks that this solution is not adequate. I think if that’s how they feel they can take it to Congress.”
Walters said this case’s decision could potentially give Monsanto total control of the U.S.’s soybean production. He said 95 percent of soy seeds in the U.S. are Monsanto seeds. If the case is decided in favor of Monsanto, farmers will have to pay for fresh seeds from Monsanto any time they want to plant RoundUp resistant crops.
Palmatier said from the justice’s questioning at the hearing, they indicated they would rule in favor of Monsanto, but he questioned why they would take the case if they were just going to uphold the decisions made in the lower courts.
The court is expected to hand down their decision soon.
Walters said his lecture at the UI College of Law will focus on the technical and legal questions raised by patents on natural phenomenon. He will focus on the case Bowman v. Monsanto, and ACLU v. Myriad Genetics, a case that could decide whether human genes are patentable. Walters said he wanted to come back to UI to give the talk because he is an alumnus.
Andrew Deskins can be reached at [email protected]