Bowman vs. Monsanto: Upheld.

The decision that has been eagerly awaited by a great number of people might disappoint just as many. I covered the Bowman vs. Monsanto case earlier when the oral hearings were made, and commented that it didn’t seem to look too good for Mr. Bowman’s case. This impression has turned out to be true: in a unanimous decision, the US Supreme Court this morning decided to uphold the lower court’s ruling and ruled against Vernon Bowman, declaring that he violated Monsanto’s intellectual property rights by regrowing second-generation seeds.

For a more in-depth analysis of the background, feel free to revisit my original post, but here is the short version: Vernon Bowman is a farmer from Indiana who bought soybean seeds from a grain elevator (which is not the usual way to get seeds, since they will be a mix of varieties and thus of heterogeneous quality), planted them, and then used Monsanto’s Roundup Ready pesticide to kill off all other non-GMO seeds, leaving the Roundup-resistant ones to be planted. This is extremely unconventional, but a great example for a patent-law case study. Under normal patent law, there is the Doctrine of Patent Exhaustion that lets you use the patented item any way you desire once you buy it – including to resell it. Once a company has sold its item, it thus cannot  claim patent infringement on subsequent uses (and owners) of that item.

Technically, that is what happened: other farmers bought Monsanto’s seeds, grew them, sold them to the grain elevator, and Bowman purchased them. What was in question now is whether Mr. Bowman was free to use the second-generation seed anyway he liked, including to plant them.

According to the Supreme Court, the answer is no.

Held: Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

The distinction the Supreme Court makes is that the Doctrine of Patent Exhaustion excludes the use of an item to make a copy of it (say, of a CD or a patented technology). By regrowing the seeds, this is what they say Vernon Bowman has done. If this were not upheld, “Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once.”

Bowman and his lawyer had argued that there is virtually no other use for a seed than to plant it and grow it, and that the Doctrine of Exhaustion would otherwise be meaningless if it were upheld that he didn’t have the right to grow seeds. However, the Supreme Court made the distinction between ‘planting, harvesting and selling’ your crop (which is allowed under Monsanto’s license to make one crop), and ‘planting, harvesting, selling and saving seeds‘, which under these circumstances is unlawful.

Under the patent exhaustion doctrine, Bowman could resell the patented soybeans he purchased from the grain elevator; so too he could consume the beans himself or feed them to his animals. Monsanto, although the patent holder, would have no business interfering in those uses of Roundup Ready beans. But the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). And that is precisely what Bowman did.

Mr. Bowman was thus sentenced to pay Monsanto $84,000 in damages and court costs.

Now, the Supreme Court did affirm that this was a special case in question: “Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. […]. We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.”

But I personally feel that the Court is letting itself off the hook fairly easily, and setting a dangerous precedent. Supreme Court rulings make case law, and are frequently cited to back up legal arguments. If this opinion, the fact that growing plants from seeds can be unlawful if that seed had, at some point in the past, had a patent attached to it, becomes prevalent, any farmer could be dragged in front of the court and be accused of wittingly or unwittingly replicating patented material. The only way to avoid legal prosecution then would be to prove beyond a doubt that you weren’t aware of the patent or that that crop that grew on your field (which might, by design, be much more resilient than your own crops and replace them) was growing “outside [your] control” – and how do you prove that? This is the main reason I am very critical of GMOs – not foremost the fact that they have been genetically modified, but the fact that they give a few select corporations so much power over our food system.