It’s one thing to lose a Supreme Court case; another to lose it by virtue of a unanimous decision. But to lose unanimously on the basis of your own understanding of the legal issue at hand is another thing altogether—and that’s what happened today to Victor “Hugh” Bowman, the Indiana soybean farmer who was sued for patent infringement by Monsanto in 2009.
As TakePart reported in February (when oral arguments were held), Bowman is a longtime Monsanto customer, who licensed Roundup Ready soybean seeds from the company ever year for his primary planting. But it was a bit of opportunistic thriftiness that got him in trouble
Bowman’s alleged infringement stems from a purchase of soybeans from a grain elevator near his Indiana farm in 1999. Although the soy explicitly wasn’t sold to him as seed, Bowman used it to plant a second, late-season crop, one he expected lower yields from due to less desirable weather. Instead of buying expensive Monsanto seeds, as he does for his primary planting, he chose to lower his overhead by purchasing some of the surrounding area’s harvest—much of which likely carried Monsanto-owned genes—at the elevator and use it as a cheaper alternative.
Bowman’s argument was that “exhaustion doctrine” should apply to the grain-elevator soybeans he purchased. If the doctrine were to apply in this scenario, Monsanto’s patent on the Roundup Ready gene (which makes the plants resistant to glyphosate weed killer) would not apply to second-generation seeds since the rights to the genes had previously been paid for. It’s the patent-law equivalent of the copyright-law concept that allows you to lend, resell and generally do most whatever you like with a book or CD after you’ve purchased it.
In the unanimous opinion written by Justice Elena Kagan, it’s clear that the Court roundly disagrees with that defense. “By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion,” Justice Kagan writes. She clearly delineates between instances where patent exhaustion applies—such as a case where a particular patented item is purchased and then resold—and where it does not: when additional copies are made.
“Bowman himself disputes none of this analysis as a general matter: He forthrightly acknowledges the ‘well settled’ principle ‘that the exhaustion doctrine does not extend to the right to ‘make’ a new product,’” the opinion reads in one particularly damning paragraph. “Unfortunately for Bowman, that principle decides this case against him.”
The self-replicating nature of Monsanto’s patented genes are part of what makes GMO crops so worrisome to critics—that they can be transmitted unwittingly into non-GMO fields, contaminating organic crops, for example. There’s also the specter of Monsanto suing farmers who never planted GMO seeds being sued for patent infringement after transgene plants are discovered in their fields.
This was by no means such a case. Bowman sprayed his secondary crop with Roundup based on the assumption that much of the seeds he purchased would carry the resistant gene, since the grand majority of soy grown in the U.S. is genetically modified. His plants withstood the weed killer, his hunch confirmed, and he sold his crop and saved more seeds to do the same thing in following years.
Bowman could be celebrated as a sort of agriculture outlaw. But his “blame-the-beans defense,” as Justice Kagan mockingly refers to the notion that “ ‘it was the planted soybean, not Bowman’ himself, that made replicas of Monsanto’s patented invention,” seemed destined to fail from the beginning.
So was Bowman v. Monsanto the wrong case for the anti-GMO groups to rally around?
The Center For Food Safety, which filed a brief with Save Our Seeds on Bowman’s behalf, is standing with its man. “The Court chose to protect Monsanto over farmers,” says Andrew Kimbrell, the Center’s executive director, in a press release. “The Court’s ruling is contrary to logic and to agronomics, because it improperly attributes seeds’ reproduction to farmers, rather than nature.”
When asked if there was any sense that Bowman v. Monsanto wasn't the best case to put its weight behind, Bill Freese, Science Policy Analyst at CFS, said, “The bottom line is you have to take every available chance to address the unjust patent laws that adversely affect so many farmers." And he was emphatic that the Justices misinterpreted the case: "Looking at their decision, the Supreme Court go it wrong from the first sentence: Monsanto didn’t invent soybean seeds."
Writing for The New York Times, Adam Liptak notes the limited scope of the ruling. “The ruling has implications for many aspects of modern agriculture and for businesses based on vaccines, cell lines and software. But Justice Elena Kagan, writing for the court, emphasized that the decision was narrow.”
He goes on to quote Justice Kagan, who writes, “Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product.”
That didn’t keep the Monsanto PR machine from crowing about a victory for “innovation.” In fact, the press release the corporation issued today barely touches on issues of agriculture, and instead reframed the decision as an instance of the court affirming “its support for protecting U.S. innovations that are a critical part of supporting the world’s growing needs.”
The release goes on to say “The ruling also provides assurances to all inventors throughout the public and private sectors that they can and should continue to invest in innovation that feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.” It’s doubtful that Monsanto failed to read the full opinion, in which Justice Kagan clearly states that this ruling is by no means so broad, but the press release certainly makes it appear that way.