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FARM FILE, A COLUMN BY ALAN GUEBERT

Monsanto faces off with farmer in high-stakes case

Was patent law violated in seed purchase and reuse?

Saturday, February 16, 2013 - 11:10 am

The world's biggest seed company never saw Vernon Hugh Bowman coming.

It should have. Beginning in May 1999, the self-described, 75-year-old “eccentric bachelor,” who farms 300 acres of corn, soybeans and rusting machinery near Sandborn, Ind., wrote Monsanto Company letter after letter asking what it thought his rights were under federal patent law and the technology agreement he signed when he bought, planted and harvested the company's Roundup Ready soybean seed.

The two parties never did agree on those rights, and Wednesday the final argument between them will take place before the U.S. Supreme Court.

The stakes for farmers and Monsanto are enormous: Bowman seeks to overturn lower and appellate court judgments against him for violating plant patents held by Monsanto when he bought, and later planted and harvested, Roundup Ready soybeans from a local elevator.

That minor difference – that Bowman bought bin-run beans from a commercial elevator he knew were Roundup Ready that he then planted, harvested and, in subsequent years, replanted – is not minor to the company.

Monsanto's tech agreement, legendary for its ironclad language and the company's iron-fisted enforcement of it, clearly prevents farmers from saving seed for later use if the seed contains Monsanto's patented germplasm.

The company asserts – with an $84,456 judgment and two federal court decisions as proof – that Bowman hoped to leap that legal hurdle by purchasing second-generation “commodity” beans from the elevator whose owners had no tech agreement because their business was to buy and sell beans, not buy and sell seed beans.

Attorneys for Bowman say his use of elevator seed was legal because Monsanto's patents were “exhausted” the moment the elevator purchased the “commodity” beans from farmers. Those patents, they contend, do not extend to subsequent generations of seed.

This “first sale doctrine” is established law. It gives an inventor control over how the patented item, windshield wipers, for example, may be sold or licensed to a car company. When the original owner resells the car, however, the patent holder's grip on the car is “exhausted”; that is, the second owner is free to use the wipers for, well, free.

Bowman argues that since he bought “commodity” beans after their “first use” from an entity not constrained by any agreement, Monsanto's patent protection was “exhausted” and he was free to use them in whatever manner he chose.

Monsanto's Supreme Court brief maintains that subsequent crops of RR beans planted, grown and harvested by Bowman from the “commodity” seeds were simply “other articles … that have never been sold. Monsanto's patent rights in those soybeans were thus not exhausted.”

That explanation sounds tenuous to Peter Carstensen, a law professor at the University of Wisconsin and co-author of an amicus curiae (“friend of the court”) to the Supreme Court that supports Bowman.

“The 'first sale doctrine' has been a 'bright-line' rule of law for well over a century,” says Carstensen in a Feb. 8 telephone interview. “As such, the Supreme Court will be reluctant to move that line.” That job, he suggests, is “better left to Congress.”

Diana Moss, vice president and senior research fellow at the American Antitrust Institute, which joined the Carstensen-authored amicus, agrees. “Granting Monsanto's argument, that self-replicating seed should get an exception under patent law, opens a huge Pandora's Box of antitrust issues that few can foresee,” she predicts.

Maybe, but the U.S. government, who the Supreme Court asked to weigh in with its own amicus, argues that Monsanto's patents weren't “exhausted” because Bowman “'made' new patented articles (the progeny seed) without [Monsanto's] authorization.”

Other Monsanto supporters include the American Soybean Association, the National Corn Growers, the National Association of Wheat Growers, the American Sugar Beet Growers and 15 state soybean associations. Their joint “friend” brief relies less on legal points and more on their belief that weeds are bad and Roundup weed killer is good.

Legal handicappers, while not betting against Monsanto, suggest the company is in a tough fight with a decidedly free-market leaning Supreme Court. A final decision on the case is due about soybean planting time.

Alan Guebert’s Farm File appears File appears Saturdays. Contact him at agcomm@farmandfood file.com or Alan Guebert, 21673 Lago Drive, Delavan, IL 61734. His website is www.farmandfoodfile.com.