Soybean Farmer, Monsanto About to Enter Supreme Court Ring

By Josh Long

WASHINGTONThe Center for Food Safety on Tuesday released a report that paints an unflattering picture of Monsanto Co. and other corporate titans that control an indispensable commodity for farmers: seeds.

The report, "Seed Giants v. U.S. Farmers", was unveiled one week before the U.S. Supreme Court hears oral arguments in a case that pits an American farmer from Indiana against Monsanto Co. Supreme Court justices will decide whether 75-year-old farmer Vernon Hugh Bowman is liable to Monsanto in a patent infringement lawsuit over its crop-protecting biotechnology.

Oral arguments are scheduled for Tuesday, Feb. 19.

Monsanto has vigorously defended its intellectual property rights after investing hundreds of millions of dollars and more than a decade of research and development into its patented Roundup Ready technology. The company licenses to farmers seeds that tolerate an active ingredient in herbicides known as glyphosate. The technology is so popular, Monsanto states, that as of 2007 it was used in more than 90 percent of soybeans grown in the United States.

Over the years, farmers have been sued for replanting seeds containing the technology. Monsanto has sued hundreds of farmers in at least 27 states, obtaining 72 recorded judgments totaling nearly $24 million, according to the report that was released by the Center for Food Safety and Save Our Seeds (SOS), a European initiative. Monsanto says it must restrict  licensing of its seeds to the first generation of crops because soybeans grown from the original seeds contain its patented technology.

Just three companies DuPont, Monsanto and Syngenta control more than half of the global commercial seed market, and rampant consolidation has resulted in increased market power to raise seed prices, according to the report. For instance, from 1995 through 2011, the average cost to plant one acre of soybeans skyrocketed 325 percent, the report said. Many crops today including corn, cotton and soybeans have been genetically modified through technology licensed by Monsanto and others.

A Monsanto spokesperson did not immediately respond Tuesday to a request for comment on the report.

The Bowman litigation dates back to a dispute that is several years old. In 2007, Bowman was sued by Monsanto after purchasing "commodity seed" from a grain elevator and replanting it. Many of the seeds were resistant to glyphosate and contained Monsanto's Roundup Ready technology, according to the St. Louis-based company.

The Indiana soy farmer argues Monsanto "exhausted" its patent rights under Supreme Court precedent because the sale of second-generation seed to grain elevators and subsequent sale to purchasers like himself had been authorized.

But in its Supreme Court brief, Monsanto contends the exhaustion doctrine doesn't apply to new soybeans that Bowman created because they were not subject to a sale that the company authorized. "Exhaustion is limited to the particular article sold and arises from the rationale that, through making a sale of an article embodying its invention, the patentee receives full reward for the use of its invention in that article. That rationale cannot apply to other articles, such as the new soybeans petitioner grew, that have never been sold," Monsanto stated.

Patent rights to plants were first recognized in a 1985 decision by the U.S. Patent and Trademark Office. Sixteen years later, in J.E.M. Ag Supply v. Pioneer Hi-Bred International, the Supreme Court upheld the granting of utility patents for plants, leading to 1800 patent submissions for genetic material of seeds and plants, according to the Center for Food Safety.