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Monsanto, the world’s largest seed company, is headed to the Supreme Court in a case over its weedkiller-resistant soybean seeds. For years, an Indiana farmer got around the company’s requirement that farmers not plant second generation patented seeds without paying a fee. Monsanto sued and won, but the farmer is taking his appeal all the way to the top. We get an overview of the case and its potential implications for our food supply.
- Greg Stohr Supreme Court reporter, Bloomberg News
Bowman v. Monsanto Supreme Court Case
The U.S. Supreme Court will hear arguments in Bowman v. Monsanto Co., to consider how patent rules apply to self-replicating technologies.
MR. KOJO NNAMDIPatents and copyrights protect the makeup of lots of items we use every day, cell phones, prescriptions and in some cases the very seeds sown to grow the food you eat. Agricultural conglomerate Monsanto is headed to the Supreme Court in a case that centers on an Indiana farmer's use of second generation Roundup-ready soy bean seeds. Here to give us a primer on the case and the potential implications of the ruling on food and more is Greg Stohr. Greg Stohr covers the Supreme Court for Bloomberg News. He's also the author of "A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge." He joins us by phone. Greg Stohr, thank you for joining us.
MR. GREG STOHRGood to be here, Kojo.
NNAMDIPlease remind us first of what Monsanto does and how the technology it has developed changed farming, especially the Roundup-ready seeds that we're going to be talking about here.
STOHRWell, Monsanto makes the Roundup pesticide. And what it has done in addition to that is it has created a line of seeds -- different seeds, soy beans, corn, alfalfa, all sorts of things, that are designed to be resistant to the Roundup herbicide -- pesticide, excuse me. And what those seeds have, they've been genetically engineered to have an ingredient called glyphosate that kills everything -- actually glyphosate is the Roundup ingredient but it -- the seeds have been genetically engineered to inhibit the -- to have an ability to resist the Roundup pesticide so that they keep growing even though Roundup kills the weeds around them.
NNAMDIWell, an Indiana farmer, Vernon Hugh Bowman, was sued by Monsanto and lost. But the case has been appealed all the way to the Supreme Court. Why did Monsanto file charges in the first place?
STOHRMonsanto filed the suit against Mr. Bowman because it restricts farmers in terms of their use of these seeds. Monsanto wants the farmers to buy the seeds every year from a licensed seed distributor. They don't want farmers to plant the seeds, take the harvest and replant that the following year because then Monsanto doesn't make as much money. So it has this agreement with -- makes the farmers sign this license agreement.
STOHRAnd Mr. Bowman found a way to try to get around the licensing agreement. And what he did was he planted two crops on his Indiana farm, as a lot of farmers do. He had a crop that he planted early in the year using the seeds that he bought from a licensed distributor and he harvested those seeds and he sold them. No problem there. But for the second planting of the season what he did was he acquired -- he bought some seeds from a grain elevator. That grain elevator had bought seeds from the harvest from other farmers. And it turns out a lot of those seeds in the grain elevator were Roundup resistant.
STOHRSo he planted those seeds. And then after he harvested them he saved some more for the next year. And Monsanto said that violates our patent rights in those seeds even though they weren't the same ones that you signed the agreement having to do with when you bought them from the distributor.
NNAMDIFor the sake of clarity here, Mr. Bowman did not go back to Monsanto to buy new seeds like he should have. Instead he bought them from the grain elevator. So why did Monsanto sue Bowman and not the grain elevator where he bought those soy beans?
STOHRWell, for starters, Monsanto doesn't have an agreement with the grain elevators. It doesn't place any restrictions on the grain elevator. And in fact, it doesn't deal directly with them for the most part. It deals with the farmers and it tells the farmers that when you buy these seeds there are restrictions on what you can do with them when you harvest them. In addition, there's not, at least in terms of what I read in the court papers, no indication that the grain elevator had any particular knowledge about what Mr. Bowman was doing. So the entity that Monsanto seemed to think was the bad guy was the farmer.
NNAMDI800-433-8850. Let me see what our listeners think about this. Do you think that seed should be protected by copyrights? Why or why not? 800-433-8850. What do you think is the key issue here? Patent protection, market monopoly or something else entirely? You can send us a Tweet at kojoshow, email to firstname.lastname@example.org or call us at 800-433-8850 to share your opinion. We're talking with Greg Stohr. He covers the Supreme Court for Bloomberg News. he's also the author of "A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge."
NNAMDIGreg, it seems kind of impractical to have to throw out usable seeds. Is there any way for farmers to make use of these second generation seeds legally?
STOHRThere are. They can sell them to a grain elevator which typically will then sell them to somebody else for feed for livestock. And of course seeds can also be used to make food for human consumption. So there are other purposes other than just replanting them that they can be used for.
NNAMDIWell, questions about patent protection and market monopoly issues both seem to be at play here, which is why I asked our -- members of our listening audience to respond. What's at the heart of this case?
STOHRAt the heart of this case is really the patent issue and whether patent protection extends all the way to those seeds that Mr. Bowman bought from the grain elevator. Whether he can buy those seeds from the grain elevator and replant them and whether at that point it's still protected by Monsanto's patent.
STOHRNow in previous cases the Supreme Court has said there's something called patent exhaustion. And what that means is if I make a product, say I make a can opener and you buy it from me, you're entitled to use that can opener. You're entitled to -- even though I have patent protection on it you're entitled to sell it to somebody else if you'd like to. The difference here in what makes this case interesting is that seeds aren't like a can opener. Seeds are self replicating.
STOHRAnd so what happens is according to Monsanto is that when Mr. Bowman plants those seeds he's actually making new products. He's making new products that are covered, Monsanto says, by our patent.
NNAMDIOn to the telephones. We will start with Jim in Arlington, Va. Jim, you're on the air. Go ahead, please.
JIMThank you, Kojo. I think your guest has explained the questions very well. What I wanted to add just by way of clarification is that this transaction that goes on between Monsanto and the grain elevator and then the farmer, in general you have the same commodity changing hands and reaching the farmer, and that is -- those are the transactions where the patent owner's rights are cut off with respect to the same product that is transferred from party to party.
STOHRSo the patent owner doesn't have a right to control the use as was explained, of that seed. The problem comes up when that seed is planted, and the resulting crops produce new seed. Now, the patent owner doesn't have a right to object to the production of that new seed because it's a natural consequence of the planting which is permitted. But in this case, it is the farmer's use of that newly produced seed, and Monsanto objects when the farmers plant that kind of newly produced seed that continue to bear the invented features and he is -- and farmers are able to essentially produce that new seed through the planting without going back to Monsanto for the purchase.
NNAMDIAnd when the planter produces that new seed, Monsanto is claiming that is what is in violation of the copyright or patent?
JIMYes. Well, that's right. What they're saying is that the use of -- that use of the new seed violates the patent rights in the same way, for example, that if the farmer found that patented seed on the ground and planted it, that would similarly violate the patent-owner's rights. It's all about a use of this invention beyond what the patent owner permits.
JIMAnd I just want to add that this issue of self replication has implications far beyond soy beans because the question of self replication is an issue that applies at the microscopic level and at the genetic engineering context, and so the case has extraordinary consequences for the biotech industry.
NNAMDIJim, you sound like a patent attorney. Are you involved in this case?
JIMI am -- I am peripherally involved. I am with the American Intellectual Property Law Association.
JIMSo we do track these things.
NNAMDIThank you very much for your clarifications, Jim. You too can call us, 800-433-8850. We're going to take a short break. When we come back we'll continue the conversation, so if you have called, stay on the line. If you're a farmer, we'd love to hear your take on this case. 800-433-8850. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking about the Supreme Court case Monsanto v. Bowman, and we're talking with Greg Stohr. He covers the Supreme Court for Bloomberg News. Greg Stohr is also the author of "A Black and White Case: How Affirmative Action Survived its Greatest Legal Challenge," and his last name is spelled by the way S-T-O-H-R if you go looking for a book by Greg Stohr.
NNAMDIGreg, the plaintiff and defendant both have a lot riding on the outcome, but its effects will reach well beyond them. What are the broader implications of the eventual ruling in this case?
STOHRWell, this is the first time the Court has considered self-replicating technologies and how patent law affects those, and it is, as we think about in the future things like nano technology and organic computers and other products that may involve self replicating technologies, the Court's decision in this case could well affect how those industries develop. And it's one of those things -- because those industries are so new, it's one of these areas where actually the Obama administration urged the Court not to take the case just because it's going to be so hard to figure out what the implications are going to be for those emerging technologies.
NNAMDIThere are several people who would like to join this conversation. I will start with Regina in Lovettsville, Va. Regina, your turn.
REGINAGood morning, Kojo. Thank you for taking on this subject. I have a small farm in northern Virginia in Lovettsville. I've also kept bees, plant my own garden, have several farmers around me who for a living plant corn and soybeans, which are two heavily genetically-modified foods. And what's important about this case are the ethical ramifications because basically if I were to plant corn on my property and it cross-pollinated with my neighbor's genetically-modified seed, whether that be -- or in this case if I did it with soybeans, if I were to do that and then if I were to save the seed and keep replanting every year, and if I ever went to large-scale production to where I would begin selling that, I would be as risk of a huge company like Monsanto and all of its financial resources suing me in court and ruining me.
REGINAAnd for a classic example of this exactly what happened, there was a case in Canada involving a farmer from Percy, and he went to the Supreme Court. He lost initially. He had to actually turn around and sue Monsanto, and for anyone who thinks that this is not huge and has big ramifications, I urge you to look that up online. Bottom line is you're patenting life, and you cannot control the way life will replicate itself genetically.
REGINAThis is morally and ethically wrong that any company could be allowed to do this, and again, I encourage all Americans to look up this case online, the farmer from Percy who actually beat Monsanto.
NNAMDIThank you very much for your call, Regina. I am not sure about this situation, Greg, but I do know that Monsanto was involved in a case in 2010 involving alfalfa. Could that be what Regina is referring to?
STOHRI don't know the specific case she is referring to either, but there are all sorts of legal issues surrounding Monsanto and these seeds, and what you're talking about, the 2010 case, has to do with complaints by organic farmers that these seeds would -- if they were grown nearby would be contaminating the organic farms and for a while a federal judge blocked Monsanto from selling its genetically-modified alfalfa seeds, and I believe there may have been a similar block on, or at least efforts to block genetically-modified sugar beet seeds for the same reason. So you have both the -- in this case the patent issues, and in that case the environmental issues.
NNAMDIRegina, thank you very much for your call. We move on to Toby in Louden County, Va. Toby, you're on the air. Go ahead, please.
TOBYHi, Kojo. Thanks for having me on the show. I've listened to you for a while and I really appreciate your program.
TOBYI'm calling -- I work in the arts. I specifically book heavy metal bands, and I've recorded a few, and put a couple albums into production. From my understanding, intellectual property rights and copyright extend to the underlying composition and not so much the product. For instance, if you buy a CD, you as the end user are allowed to replicate that CD as many times as you would like for your own personal use. The problem becomes when you turn around and you try to sell that protected property for your own profit, or you try to perform it for your own profit.
TOBYThen you have to pay royalty to the person that came up with the art in that instance, or in this case, it would be the underlying process that creates the genetic modification.
TOBYRegina, my neighbor, from the down the street brought up the point of cross pollination. If somebody plants Monsanto seeds on one acre, and somebody else plants genetically unmodified plants in another field and they cross pollinate, that genetic marker can translate to those plants, and then there's no way for a grain elevator to be able to know, you know, which plants are carrying that trait without doing further testing at the genetic level to see if that trait had been passed on, which then puts an undue burden on the end user.
NNAMDIThank you very much for your call, and for you clarification, Toby. We're getting a lot of those here today, Greg Stohr. Greg, here's this tweet we got from Kathleen. "A thought: If I crossbreed two dogs should I then be given a patent for that offspring and those after that? That's what Monsanto is doing. Plants are living objects just like an animal." And Sam tweets, "Monsanto goes after individual farmers because they're the most valuable."
NNAMDII suspect, Greg, that people who are opposed to Monsanto in this lawsuit would make that argument that they go after individual farmers because they are the most vulnerable. And Monsanto is no stranger to controversy, primarily surrounding questions about genetically modified foods. Is that an underlying current here Greg, and do you think it will have any influence on the ruling?
STOHRThere certainly is a very strong movement that opposes genetically modified food and sees Monsanto as the biggest villain in the business. This case is not directly about those issues. This is really a patent case. It doesn't have to do with issues of -- directly of issues about the food we eat or even Monsanto's monopoly rights. One thing I do want to just clarify from what the caller said, that while he describes issues in copyright law which is another branch of intellectual property protect, those legal principles are a little bit different in this is a patent case.
STOHRAnd he was describing what sort of sounded like a fair use of a copyrighted material. Patent law just works a little bit differently. So while sometimes it's useful to analogize the copyright law, the Supreme Court's not going to be bound by what it thinks is the best rule for CD's and other copyrighted material.
NNAMDIThank you. Here now is Segaia (sp?) in Woodbridge, Va. Segaia, you're on the air. Go ahead, please.
SEGAIAThank you, Kojo, for giving me a chance. I was wondering, you know, today it's on seed, and tomorrow an animal, the day after tomorrow about human beings. Where does we have to stop the line, you know? These things -- all these things what they are doing now is not (unintelligible) years. We don't know the affect what it will cause on human beings, you know?
NNAMDIThank you. Thank you very much for your comment. Obviously there are people, including some who have been tweeting to us, are wondering where this is going. Are there earlier cases that we can look to for a hint at how this one is likely to be decided, Greg Stohr?
STOHRWell, in general, this is a Supreme Court that it somewhat skeptical of patent rights and broad patent protection, and the fact that they took Mr. Bowman's petition in this case, which they did not have to do, suggests they might have some skepticism about the lower court ruling that said the Monsanto could enforce its patent against him. That's a pretty, you know, pretty broad generalization I just about the court and patent law, but I think we should certainly not assume that Monsanto is going to win this case, and in fact, I think it's certainly fair to assume that there will be several justices that are pretty skeptical of Monsanto's claim.
NNAMDIOn now to Jennifer in Baltimore, Md. Jennifer, you're on the air. Go ahead, please.
JENNIFERHi. Thank you very much. Well, I loved hearing the earlier farmer. I thought she was very clear on many of the issues. I'm -- I love to garden and I love to farm and I love to support people who provide food on a local level, and I know that farmers for centuries have saved seed to plant them again. So the idea that a company would like to keep control of that to the degree that Monsanto is trying to do, I find really troubling and offensive.
JENNIFERAnd I hope that the Supreme Court rules against that because I think -- I know that's it's much more complex than that. I realize that. But it's a very, very significant and fundamental issue that's being brought up and I'm going to be watching it now that you've brought my attention to it. So thank you for that.
NNAMDIAnd thank you very much for your call. We move on to Susan in Alexandria, Va. Susan, go ahead, please.
SUSANOkay. I have really enjoyed the discussion so far. This is not new to me, but it's a new hot button for me. The -- at the beginning of the program, it sounded as if the farmer was malicious the way it was presented. The farmer knew what he was doing, knew that he was planting GMO seed, and that -- I'm thinking there's no way he could have known that.
STOHRHe did know that he was buying it from the grain elevator, and he knew that the grain elevator accepted at least some genetically-modified seed. He did the over the course of a number of years, and what the court documents show is that he -- the first year basically tried it out to see what would happen if he applied Round Up to the crop and it turned out that the crops did pretty well, and there's some evidence in the case that something over -- I've forgotten the exact number, 90-some-odd percent of the seed accepted by this grain elevator is genetically modified.
STOHRSo at least in the later years it was pretty clear to everybody that this was essentially the same as the seed that he could have bought from a Monsanto distributor.
SUSANSo it almost sounds like Monsanto's mad they didn't think of that first. And the other thing, I was just -- everybody's brought up all the points I wanted to make. The only other thing, I watched "Genetic Roulette" on the Internet the other day, it's a "Genetic Roulette" movie by Responsible Technology.
SUSANIt was very informative on GMOs and how scary it is.
NNAMDIOkay. And that seems to be what's driving a lot of the conversation we have been having so far. Greg Stohr, we're almost out of time, but since we are on the edge of a political season here, our brains are keyed up to look for the political angle of everything right now. Is the vote on this case likely to come down along a politically partisan divide?
STOHRI wouldn't expect so, just because past patent cases haven't. There are some justices who are more skeptical of patents than others, but they don't fall along the same continuum that we're so used to seeing in social issues and on things like the president's health care law.
NNAMDIGreg Stohr covers the Supreme Court for Bloomberg News. He's also the author of "A Black and White Case: How Affirmative Action Survived its Greatest Legal Challenge." Greg Stohr, thank you so much for joining us.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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