When farmer Vernon Hugh Bowman walked into an Indiana courtroom four years ago to face off against biotechnology giant Monsanto Co., he argued in his own defense.
On Tuesday, standing in the U.S. Supreme Court, the 75-year-old will have a fleet of attorneys beside him -- and the eyes of the business world on his case.
The hearings bring the Creve Coeur, Mo.-based company into the country's highest court, and could have consequences that go well beyond the company's interests, and beyond agriculture.
In 2007, Monsanto sued Bowman, saying he infringed on its patent when he planted the offspring of the company's Roundup Ready soybeans. Bowman argued that the progeny of those beans fell beyond the reach of the patent.
The district court ruled in Monsanto's favor, as did the U.S. Court of Appeals. But Bowman, now represented by a big law firm donating its time, took the case upward. Now the high court is considering for the first time how to handle these new technologies.
Dozens of briefs have been filed. Those supporting Monsanto, from the University of Missouri to Microsoft Corp., say a decision for Bowman would have a massive chilling effect on innovation. If, the thinking goes, patents don't extend to the progeny of self-replicating products -- like seeds or live viruses or software that writes its own code -- why would companies and universities pour billions into research?
"Our case is the template for a broader discussion," said David Snively, Monsanto's general counsel. "This is just really about how patent law concepts apply to tomorrow's technologies."
Bowman's supporters, including food advocacy, farmer and antitrust watchdog groups, argue the patent applies only to the original product. They contend that allowing patents to cover second-generation seeds would further consolidate the industry's control over the seed market, leaving farmers fewer choices of suppliers and varieties, and leading to rising prices.
"If the Supreme Court affirms what the federal court decided, that's going to create a very uncertain expansion of patent rights," said Peter Carstensen, a law professor at the University of Wisconsin who co-wrote a brief supporting Bowman. "That's going to make it much more difficult for new enterprises to function free of patent litigation."
In 1996, Monsanto released its first genetically engineered soybeans, designed to survive applications of the company's herbicide, Roundup, enabling farmers to kill weeds but not crops. The Roundup Ready system quickly became the world's most widely used seed technology, and now 90 percent of the soybeans grown in the U.S. are Roundup Ready.
To use it, farmers were required to sign agreements saying they would not plant the original seeds' offspring, which contain the genetically engineered trait. With each plant producing roughly 80 seeds, the need for that restriction was clear, the company says.
But farmers -- supported by government policies and law -- have a long tradition of replanting seeds. Some violated the contracts, and Monsanto pursued them vigorously: The company has sued farmers 146 times, prevailing in the 11 cases that went to trial. More than 400 farmers in 27 states were involved.
The company says 146 is not a high number of suits given the 275,000 licenses issued a year. The Washington-based Center for Food Safety, long critical of Monsanto and a supporter of Bowman, tracked the cases and says Monsanto has been awarded $23.5 million from the lawsuits, and "hundreds of millions more through confidential out-of-court settlements."
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