The GMO Fight Rages On: Implications of Bowman v. Monsanto

On Tuesday, the U.S. Supreme court heard arguments from defenders of a 75-year-old Indiana farmer, Vernon Hugh Bowman, and agricultural biotech giant Monsanto. The issue at hand centered on a principle in patent law known as patent exhaustion, which limits how long patent holders can control the use and sale of an item.

The trouble for Bowman started when he harvested soybeans grown from common grain he purchased from a local grain elevator, which is legally limited to selling grain to farmers only for non-planting purposes. What they do with the seeds after they purchase them is nobody’s business … or was, that is.

Bowman’s grain turned out to be mixed (not uncommon) with Monsanto’s patented “Roundup Ready” seeds, which are genetically modified to resist the company’s herbicide, or weed killer, “Roundup,” by killing weeds while sparing the crop.

By the time Bowman harvested his crop, he realized he had been growing Monsanto’s patented seeds because he had used Roundup, which didn’t kill his crop. He decided to keep the grain from his harvest to plant another generation of soybeans the following year, which is not allowed under Monsanto’s contract with customers. Since Bowman bought the grain from a grain elevator, which Monsanto hadn’t indicated wasn’t kosher, he says he didn’t think he was doing anything wrong.

But according to Monsanto, he was. The company sued him for patent infringement in district and appellate courts, winning both cases. Bowman, who’s “not intimidated easily” and “wants to fight,” according to his attorney Mark P. Walters, was undeterred and decided to take the case to the country’s highest court.

In front of the U.S. Supreme Court this week, Walters argued that Bowman is protected under the patent exhaustion doctrine because Monsanto can’t lay claim to grains that it didn’t license directly to a customer. Plus, soybeans are different from other technologies in that that they’re living organisms and self-replicate in normal use, so Bowman wasn’t “copying” them, per se.

Monsanto thinks he was and that he infringed its patent because he used its GM seeds without paying the licensing fee. The company wants to be fairly compensated for its technology, given that it spends $2.6 million per day on R&D, according to its website.

The court will present a decision by June. It will have huge implications not only on what’s patentable and for how long, but also on the question of who controls our food supply. For now, it's mostly large corporations, which are typically protected by courts in cases like these, says Marion Nestle, book author, blogger and professor in the Department of Nutrition, Food Studies, and Public Health at NYU. (Nestle also said she’s not optimistic that the farmer will prevail in this case.)

According to a 2011 U.S. Department of Agriculture (USDA) study, 72 percent of corn seed and 55 percent of soybean seed (biggest crops in the U.S.) came from the top four producers of these seed varieties in 2007: Monsanto, Dupont/Pioneer, Syngenta, and Dow. Those percentages are likely higher today.

The USDA also estimates that approximately 90 percent of U.S. corn and soybean seeds are genetically modified, which, according to biotech giants, should increase yield and pest resistance, thereby lowering costs to farmers.

But this last point is debatable, considering that consolidation in the seed industry has led to higher input prices; licensing structures that require farmers to pay seed producers every time they plant a new generation of the same seed; and weed mutations, or "superweeds," that are becoming resistant to Monsanto’s GM seeds and herbicides, leading to additional costs for farmers.

Sounds rough. So why aren’t farmers defecting back to conventional seeds?

For a couple of reasons: first, farmers, especially grain farmers, Bowman said, are “notoriously independent and highly competitive.” This is because they get only one paycheck per year, he explained, in fall when they harvest their crops.

When Monsanto’s Roundup Ready seeds came to market in 1996, they didn’t necessarily increase yield, Bowman said, but they did allow farmers to farm a lot of acres more easily. So farmers had to use the new technology to compete with their neighbors.

Bowman has a great metaphor for this phenomenon: “If you disliked a doctor very much, but every time he operated on a patient that had cancer he cured them, you would go to him even though you hated his guts.”

Another reason farmers aren’t using different seeds, according to Genna Reed, researcher at Food & Water Watch, a consumer rights NGO, is that industry consolidation doesn’t leave farmers with many options. In fact, as a result of a landmark 1980 Supreme Court decision that made GMOs patentable, corporations filed 1,800 patent submissions for genetic material of seeds and plants. Also, the four biggest chemical companies mentioned earlier quickly jumped into the seed production fray by acquiring existing seed firms. At least 200 independent seed companies were bought out and consolidated from 1996 to 2009, according to a new report by the Center for Food Safety and Save the Seeds.

This Supreme Court case, Diamond v. Chakrabarty, also turned centuries of farming practices on their head, according to Reed, privatizing what was once a freely exchanged resource available in the public domain and for the public good.

“Basically, what Monsanto’s patenting structure has done is taken away the seed-saving structure,” Reed said, which is the practice of saving seeds for use from year to year.

Monsanto doesn’t agree. According to Thomas Helscher, executive director of Commercial Acceptance at Monsanto, farmers have free will when it comes to choosing where to buy their seeds.

“Every year farmers decide what seed to purchase and who to purchase it from,” Helscher wrote in an e-mail. “As an example, there are dozens of varieties of non-patented, non-GM soybean seed available in Indiana [Bowman’s hometown]. Farmers who want this type of seed know where to find it.” According to Helscher’s estimates, “more than 1,000 separate seed companies supply the commercial seed market globally.” It is unclear how many supply the U.S. market.

In an ideal world, Helscher is right. But the real-world situation is clearly much more complicated than he lets on.

Helscher’s contention also neglects the reality of GM seed contamination, which is prevalent among corn and alfalfa and a threat to organic growers, who are not only susceptible to contamination, but also to lawsuits by Monsanto. Presumably, even home gardens are susceptible to contamination, and thus, if the Supreme Court rules in favor of Monsanto, legally liable.

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[Image courtesy of USDAgov on Flickr]