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The Supreme Court on Monday ruled unanimously that farmers need to pay agriculture and biotech company Monsanto each time they plant crops using its patented technology for genetically modified soybeans. It’s a case that triggered complicated questions about proprietary rights, technology and the future of our food system. Kojo explores the outcome and what it could mean for other battles over intellectual property rights.
- Adam Liptak Supreme Court reporter, The New York Times
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, fictionalizing the life of Zelda Fitzgerald, author Therese Anne Fowler joins us to explore her novel about one of the most famous muses in literary history, but, first, a critical legal development for the future of the American food system.
MR. KOJO NNAMDIThe Supreme Court on Monday sided with one of the giants of agribusiness in a dispute over the company's patented technology for genetically altered crops. The court unanimously ruled that farmers can't use soybeans patented by the company Monsanto to create new seeds without paying a fee. The dispute triggered a debate over how licensing agreements and patents apply to self-replicating products, like seeds.
MR. KOJO NNAMDIAnd while Justice Elena Kagan wrote that this ruling was narrow, it could have significant implications for others in the agricultural business, as well as those making innovations in software and medicine. Joining us to talk about this is Adam Liptak. He is the Supreme Court correspondent for the New York Times. He joins us by telephone. Adam, thank you for joining us.
MR. ADAM LIPTAKHello, Kojo. How are you?
NNAMDII'm doing well, Adam. This case was portrayed by many as a David versus Goliath kind of story, a huge agribusiness versus a small-time farmer. But the court ruled unanimously that the farmer, Vernon Hugh Bowman, infringed Monsanto's patents for genetically altered soybeans. Before we go farther, what kind of licensing agreement did Bowman have with Monsanto? And what did he do with the seeds to trigger this dispute?
LIPTAKSo Bowman was probably a little too clever by half. He did two kinds of things. He did the usual thing that people do when they use Monsanto's patented genetically altered soybeans. And just to be clear, what was not before the court, the court accepted that the patent was appropriate, that Monsanto had innovated and found a way to produce soybeans that are resistant to a herbicide called Roundup, which is also a Monsanto product.
LIPTAKSo he uses the patented soybean in the usual way for the first crop of the season, which is to say he buys it from Monsanto, and he signs a contract promising not to save any seed from his crop. And he does that for the first go-around, and that's what most farmers do. And that part of the case was not before the court because that's a contractual question. If you promise you're not going to use it, you're supposed to live up to your promise.
NNAMDIIt was the second go-around.
LIPTAKYes. But he also -- I guess soybean farmers sometimes plant a second crop, which is riskier. It doesn't always work out as well. And for that, he went to a local grain elevator, which had soybeans that other people had sold it, and that was really meant largely -- and now we learn exclusively -- for use in food or to feed to your animals but not for replanting.
LIPTAKNonetheless, he goes to this grain elevator, and he plants this additional seed, some of which is the patented stuff -- most of it is -- some of which is not. He sprays it with the herbicide, and this time around, he does save the seed and does that over and over again.
NNAMDISaved the seeds of the plants that survived?
LIPTAKExactly. And he does that eight times in a row, and he gets geometrically larger and larger amounts of soybean seeds. And the question for the court was -- is -- and here he didn't make a promise. He just went to the grain elevator, and he planted the seeds. Was he allowed to use the seeds that he saved over and over again? And the court says no. The court says the nature of a self-replicating technology, which, I guess, is one way to think about a seed, that if you have a patent for it, you can control the replication. That is there's a doctrine known as patent exhaustion.
LIPTAKAnd what that basically means is, once you buy something, it's yours. You can do with it what you like, but you can't make copies of it. And the question here is: How do you think about a seed? Is the ordinary use of a seed to plant something and make further copies the kind of thing that would be subject to this rule or not? And Justice Elena Kagan running for the entire court unanimously said Bowman was being too clever here. He was allowed to buy seeds and do what he likes with them, but he's not allowed to make copies by planting further seeds.
NNAMDIShe said under the patent exhaustion doctrine that Bowman could resell the patented soybeans he purchased from the grain elevator, so, too, he could consume the beans himself or he could feed them to his animals.
NNAMDIBut it doesn't allow him to make additional patented soybeans without Monsanto's permission, and that's what he did. The other argument that Mr. Bowman made was that soybeans naturally self-replicate or sprout unless stored in a controlled manner. What was wrong with that argument?
LIPTAKWell, Justice Kagan referred to that as the blame-the-beans defense. She said: I understand it. I got it. If, you know, you put it in a warm place, it's going to make its own copies of itself and sprout and so on. But that's not what he did. What he did was eight times in a row planted this stuff. He sprayed it with the very herbicide that it was resistant to, and, you know, really tried to end-run the system.
NNAMDIWhat is Monsanto's position like in the market that farmers turn for these seeds? Is Monsanto the only choice for farmers who want to plant seeds that are resistant to herbicides?
LIPTAKNo. Well, it's the only choice for seeds that are resistant to the dominant herbicide itself, a Monsanto product called Roundup. There are other seeds out there, but Monsanto really dominates this market because it has a kind of one-two punch. First of all, it comes up with the leading herbicide, and then it sells you the only seed that's resistant to that leading herbicide, which it calls Roundup Ready. So it's the dominant player in the market.
NNAMDI800-433-8850 is the number to call if you'd like to join this conversation. We're talking with Adam Liptak. He is the Supreme Court correspondent for The New York Times about the Supreme Court's unanimous ruling against the farmer over the replanting of soybean seeds that were patented by Monsanto. 800-433-8850. How do you feel about the influence large companies like Monsanto have over how agriculturists practice in the United States?
NNAMDIYou can also send us an email to firstname.lastname@example.org or send us a tweet, @kojoshow. Adam Liptak, writing for the court, Elena Kagan made clear in her opinion that this decision was tailored narrowly, but what do you think was ultimately at stake in this case for inventors, for people who are making investments and developing technologies and all kinds of arenas?
LIPTAKWell, one thing that clearly drove the decision was the court's sense that at least in this case if it went the other way and if it gave people a way to avoid Monsanto's patent, then it would destroy the value of the patent. And the court generally likes to protect innovation and likes to make sure people have incentives to do, you know, expensive scientific work, and it didn't want to, at least in this case, destroy Monsanto's patent.
LIPTAKBut she had some -- and, you know, there are similar self-replicating technologies in software and vaccines and cell lines, and she went out of her way to say some of those cases may raise different questions. But at least in this case -- there was a kind of distaste for this particular farmer and his too clever by half end-run around the Monsanto patent. At least in this case, the court was not ready to destroy Monsanto's economic incentive to do this kind of work.
NNAMDIAnd just for clarification here, because Mr. Bowman claimed that he was planting these seeds the way normal farmers do, but the court essentially agreed with Monsanto that Bowman was creating a new product with technology...
NNAMDI...that Monsanto pioneered by the manner in which he planted these seeds.
LIPTAKSo for sure Bowman's best argument was the commonsense argument that he wasn't doing some high-tech replicating in the laboratory. He was doing what farmers have done since the beginning of time, which is plant the plant and save the seeds for the next planting, and that's why a lot of people when they hear about this case, you know, they'll get lost in the legal and the patents. They just don't understand how you can tell a farmer that he can't do what farmers have done since the beginning of time.
NNAMDIIndeed, what kind of case did Monsanto opponents make about what was at stake for consumers? How would -- how this decision would ultimately affect the prices people pay for food and the like?
LIPTAKWell, some of it was about prices. Some of it was from people opposed to genetically modified food, although that issue was not before the court, and some of it was by people who just support farmers as opposed to huge agribusiness who say that such people should have a fighting chance to make a living.
NNAMDIOn to the telephones. Here is Sarah in Silver Spring, Md., who would like to raise another issue. Sarah, you're on the air. Go ahead, please.
SARAHHi, Kojo. I want to thank you for covering this topic. I think it's very important. For me personally, I have a lot of concern about genetically modified foods and their health effects, specifically for children. But I was wondering if your guest could comment on the fact that Clarence Thomas used to work for Monsanto, and I was upset that he didn't recuse himself from the case.
NNAMDIWas that an issue, Adam Liptak?
LIPTAKIt was not an issue that anyone raised. It's true that many years ago he was an in-house counselor at Monsanto. I don't think most legal ethics experts think that that's a sufficient reason to require his recusal. Of course, it would have made no difference given that it was nine-noting decision whether it would have been an eight-nothing decision. So my gut is that the fact that he once upon a time worked for a company is not in the eyes of most legal ethics experts' reason to require a recusal.
NNAMDISarah, thank you very much for your call. Adam, I'm glad you mentioned that this was a unanimous decision. What did we learn about the court with this decision? Should people be at all surprised that it was a unanimous ruling?
LIPTAKWell, I guess what a unanimous ruling means is they found it to be a very easy case. I think they start with the idea that what's before them is not whether genetically modified food is a good idea or not and not whether you can patent a genetically modified product but merely once you accept that there's a patent, you have to protect that patent in some fashion.
LIPTAKThe truth is you don't learn a ton from the court when they rule unanimously because it's really the interplay between a major opinion and a dissent that brings out what's really at stake in a case. And sometimes a short -- and this was a short decision can be frustrating because it's not really clear what's bubbling under.
NNAMDIFor those who may be wondering where this may be going from here, here is Daniel in Rockville, Md. Daniel, you're on the air. Go ahead, please.
DANIELYeah. Hi. I'm a patent examiner actually, but I just wanted to point out that, you know, this is all probably going to be going into the public domain in not too long. So people shouldn't worry about, you know, huge economic costs. The whole point is the patent system is for a limited time, you know, the companies can have exclusive rights to their inventions, but then, you know, they -- in exchange for that, they publish, they share their knowledge. And after that, it's all available freely to use by the public.
NNAMDIWell, Daniel, do you have any idea when this patent will expire?
DANIELI haven't checked actually, but I think what I saw was that it was issued something, you know, something like 15 years ago or so, which means that, you know, we have maybe about five years left. So, you know, since the -- maybe 15 years since the filing. I'm not sure. I don't...
NNAMDIWell, I'll ask Adam Liptak. Do you know anything about that at all, Adam?
LIPTAKI should know the answer, and I don't. But I agree with the caller that it's a small number of years that this patent has existed for a good long time. And I think the caller is quite right to point out that what the patent system and what all intellectual property rights do is try to balance, making sure that people will come up with cool stuff, get a reward and have a monopoly for a limited time but ultimately put that knowledge in the hands of everybody.
NNAMDIDaniel, thank you very much for your call. Salil (sp?) about the implications of this ruling. Salil, you're on the air. Go ahead, please.
SALILHi, Kojo. Thanks for taking my call. So I have a question about whether the actual evolutionary process could be patented here because if -- my question is if the farmer in question had actually started with wild feedstock, wild stock of soybeans and not stock from the silo, which could contain that Monsanto stock, what would have happened had he sprayed it with Roundup and actually resulted with the resistant plant?
NNAMDII don't know. Adam, do you?
LIPTAKI don't know why that would run afoul of the patent.
LIPTAKI mean, what's patented is the particular seed, and if you can figure out a way to evolutionarily or otherwise come up with a seed that's resistant to the herbicide, then (unintelligible).
NNAMDIYou run off to the patent office yourself, don't you?
LIPTAKBut, you know what, what it also does is foreshadow a much more -- a much bigger case that the court is yet to decide...
LIPTAK...about whether you can patent human genes.
NNAMDIAnd I thought that was the question that Salil was raising. Was it in part, Salil, the question you were raising?
SALILIn part. Part -- I'm curious as to what the wider implications are from this. That is, there's -- Monsanto selectively chose, you know, this limited area to file their case. But if you can effectively and functionally produce the same product, then there's another end-run that apparently farmers, you know, can take advantage of, I suppose.
SALILBut also, it has implications for what their future -- Monsanto's future, which, you know, they would have to find another way to fight it, of course.
LIPTAKRight. But so the practical problem is that this herbicide is very strong. It wipes a lot of plants. And the only plants it doesn't wipe out, as far as we know, are the Monsanto patented Roundup Ready seeds. But, if you could figure a way to sort of reverse engineer your way around it, that probably does not run afoul of the patent.
NNAMDISalil, thank you for your call. Here is Melvin in Charlestown, W.Va. Melvin, you're on the air. Go ahead, please.
MELVINYeah. I just -- I have a huge problem with the influence that Monsanto has over the industry mainly because, I mean, I understand they created a new gene. But they've also introduced this sense of nature. I mean, there are farmers that have their stock confiscated because their crops have picked up the gene through natural processes. I just don't understand how something that is occurring naturally one company can have so much control over.
NNAMDIWell, it's not occurring naturally, it's my understanding. But, Adam Liptak, your turn.
LIPTAKThat's right, Kojo, although the caller does raise an interesting question. Some of the seeds get scattered in the usual way by the winds and so on and ends up on your property whether you want it or not.
LIPTAKAnd that raises interesting questions about, then, are you obliged not to -- when you're completely blameless and it just turns up whether you're then obliged not use the seeds that turn up with the next crop. And that was not before the court.
NNAMDIMelvin, thank you for your call. Elizabeth in Washington, D.C., your turn.
ELIZABETHKojo Nnamdi, you are the only one I know to bring out these hidden things that are happening in our country. Thank you so much.
NNAMDIWell, I appreciate the comment, but on this occasion, I'm not the only one bringing it up. But I'll take the credit. But go ahead, Elizabeth.
ELIZABETHWell, it's a question of why. We gave a patent to some product, as they call it, but changes has to do with human nature. This is using -- moving a DNA out of a seed and substituting with something else. Now, I have a wonderful book I recommend that I read years ago -- a few years ago -- called "Seeds of Deception." And I think it has to do with something about the American dream.
ELIZABETHWe support corporations even if they do something harmful, Monsanto -- and there was another company that create these seeds. And the thing that's dreadful about them is, as someone did say, they can float over to some other place. They are destroying our natural seeds. They are put in the ground with the DNA that resists Roundup, and Monsanto itself not only makes money on the seed but makes money on the Roundup. And one of the horrible things is all over the world, we're losing our bees. It is because they need some weeds. There must be...
NNAMDIBut I also thought, Elizabeth, you wanted to make a point about Europe's different attitude towards these Monsanto seeds than the attitude in the United States.
ELIZABETHOh, yes. I do happen to live Italy a great dear -- deal. And the thing that is so interesting is the Europeans seem to have an instinct about nature that we do not. They're doing more about global warming and...
NNAMDIWell, allow me, because we're short on time, to have Adam Liptak talk about whether or not there is a difference in how these Monsanto Roundup Ready seeds are viewed in Europe.
LIPTAKI only know in a general way, but I think we all know that the Europeans are much, much more sensitive on these issues, are very wary of genetically modified food in general and, therefore, probably would be much less welcoming than the U.S. agribusiness has been to these kinds of seeds as they have been in the U.S.
NNAMDIBut as Adam Liptak pointed out earlier, this was not the issue before the Supreme Court at this time. But, of course, there are implications for future cases, and we'll be looking forward to talking with Adam Liptak again as he reports on those cases. Adam, thank you for joining us.
LIPTAKGreat to be here.
NNAMDIAdam Liptak is the Supreme Court correspondent for The New York Times. We're going to take a short break. When we come back, fictionalizing the life of Zelda Fitzgerald. Author Therese Anne Fowler will be joining us to explore her novel about one of the most famous muses in literary history. I'm Kojo Nnamdi.
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