High Court rules that farmers “make” seeds

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Today, the Supreme Court of the United States issued their ruling on the Bowman v Monsanto case, siding unanimously in favor of Monsanto. The court rejected Bowman’s arguments that Monsanto’s patent “exhausted” when he purchased seeds from a grain elevator to plant on his farm, and affirmed that the act of growing a crop of seeds is “making” those seeds, and are still covered under patent law. It was a narrow ruling that applied only to seed patents, but it could have long-term implications for other self-replicating technologies.

Vernon Bowman is a farmer in Indiana, who grew genetically engineered Roundup-Ready soybeans on his farm, and signed license agreements not to save and replant those seeds. However, he wanted to grow a second, late-season crop of beans, which were too high-risk to justify paying the licensing fees for the seeds, so he devised a plan to work around the license issue. He bought generic “commodity” beans from a grain elevator, which were destined for consumption, and planted his second crop from these. He even sprayed these fields with Glyphosate herbicide to kill the weeds and all non-Roundup Ready plants, thus specifically selecting for the trait, and he did this for 8 years on his farm before this practice was discovered.

When Monsanto found out about this, they sued Bowman for patent infringement, and won through two levels of the court system. He appealed to the Supreme Court, which elected to take up the case. Both sides presented their arguments on January 19 this year, amid a flurry of media activity and speculation. The case attracted wider attention outside the agricultural community because a ruling on the case could have far-reaching implications for the development of other forms of self-replicating technologies.

Patent Exhaustion is the legal concept that “the initial authorized sale of a patented item terminates all patent rights to that item.” Buying the first batch of soybean seeds for planting would “exhaust” the patent, and allow the buyer the right to use the soybeans produced from that crop for purposes such as processing, feeding to animals, selling to a grain elevator, etc. Bowman argued in January that patent exhaustion also applied to replanting the soybeans to grow another crop, hinging on the use of the term “make.”

Patent Exhaustion does not apply to the act of making copies of an invention, which would still be covered under patent law and require permission of the patent holder. So Bowman’s legal argument was that by growing a crop from seeds the plant is growing copies of the invention, but the farmer is not “making” them. In legal briefs and public comments, Bowman and his legal team argued that the act of farming itself was almost an accidental enterprise. Farmers are instead actively keeping seeds from sprouting as they would naturally do, and by planting them are allowing nature to take its course.

From the brief filed by Bowman,

Supreme Court of the United States, from SupremeCourt.gov

Bowman’s use of commodity seeds for planting has nothing in common with “reconstruction.” No parts were worn out and replaced; the seeds were simply used. In the context of patented seeds, use as contemplated by all parties to the first sale may simply result in the creation of a new item.
(…)
The seeds at issue here will self-replicate or “sprout” unless stored in a controlled manner to prevent this natural occurrence. Humans can (and most often do) assist in the process of self-replication. For instance, Bowman planted Roundup Ready® seeds and treated them with glyphosate. This activity led in part to the creation of new soybeans having the patented Roundup Ready® trait. But it was the planted soybean, not Bowman, that “physically connected” all elements of the claimed invention into an “operable whole.”

In the ruling written by Justice Kagan, this argument was soundly rejected.

Justice Elena Kagan

The exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). And that is precisely what Bowman did. He took the soybeans he purchased home; planted them in his fields at the time he thought best; applied glyphosate to kill weeds (as well as any soy plants lacking the Roundup Ready trait); and finally harvested more (many more) beans than he started with. That is how “to ‘make’ a new product,” to use Bowman’s words, when the original product is a seed. (emphasis added)

To drive the point home, they added,

Still, Bowman has another seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of Monsanto’s patented invention. “[F]armers, when they plant seeds, they don’t exercise any control. . . over their crop” or “over the creative process”. But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops.

In other words, the Supreme Court affirmed that which would seem to be patently obvious: Farmers actively create or make seeds when they grow crops. It was clearly stated in his court brief just how involved Bowman was in the process of growing these crops, and this fact was not missed by the nine justices, who ruled 9 to 0 against him. The very readable rulingspent considerable effort to outline the reasons why exhausting a patent after only one generation of growing a crop from genetically engiineered seeds would effectively undermine the entire patent concept, and reduce the patent monopoly from twenty years to less than one. Their reasoning was motivated by the directives of Congress on maintaining reliable incentives for the invention of new and useful technologies.

Another argument made by Bowman also did not escape notice of the Court. He argued that planting is the natural consequence of seeds, even when they are sold by a grain elevator with the intention of being processed into food or other products. This line of argumentation led George Kimbrell and Debbie Barker from the Center for Food Safety (CFS), to even say in an LA Times editorial that genetically engineered soybeans are “natural products.”

Monsanto’s claim that it has rights over a self-replicating natural product should raise concern.(Emphasis added)

An unnatural position for them to take.

Monsanto was claiming rights not over any seed, but over a genetically engineered seed, so Kimbrell was describing genetically engineered seeds as natural products. The Center for Food Safety, which filed a brief in support of Bowman, has long argued that genetically engineered crops are not natural, so this apparent change in position brought about by this argument was significant. If the seeds are not natural, then there is no precedent set that the “natural and foreseeable use” of them is for replanting. Therefore, contrary to previous statements, they needed to argue in favor of the naturalness of growing second-generation genetically engineered seeds. The term “natural” was used widely in the brief filed by CFS.

Commentators noticed that planting commodity beans intended for processing was deviating from the foreseeable use of those beans. Moreover, as farmer Brian Scott pointed out, planting generic commodity soybeans is not good agronomic practice. Soybeans come in different maturity types bred for different regions, and will reach harvest at different dates after planting. By planting a mixture of maturity types, which are mixed together at the grain elevator, the crop will be inconsistent in maturity during growth and harvesting.

The High Court also addressed the “natural use” argument.

Bowman himself stands in a peculiarly poor position to assert such a claim. As noted earlier, the commodity soybeans he purchased were intended not for planting, but for consumption. Indeed, Bowman conceded in deposition testimony that he knew of no other farmer who employed beans bought from a grain elevator to grow a new crop. So a non-replicating use of the commodity beans at issue here was not just available, but standard fare.

The case was expected to have far-reaching implications for other self-replicating technologies, however, the court explicitly stayed away from such a broad ruling.

Our holding today is limited—addressing the situation before us, rather than every one involving a self replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse.

Nevertheless, the reasoning presented behind today’s ruling may have long term effects on the development of other self-replicating technologies, suggesting that as these technologies develop into maturity that they, too, may be protected against unlicensed reproduction.

RepRap: A project to develop a self-replicating 3d printer. Such technologies are sure to be affected by cases like Bowman v Monsanto

See Also:

NY Times on the ruling.

American Soybean Association statement, which welcomes the ruling.

Center For Food Safety statement, which is displeased with the ruling.

Follow Karl Haro von Mogel:

Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He recently moved back to his home state of California. His favorite produce might just be squash.