For farmer Vernon Hugh Bowman, it might have been a bad sign in his challenge of Monsanto Co. when Chief Justice John Roberts asked at the start of oral arguments why a company would pay to improve seeds without a patent protecting the investment.
Throughout Supreme Court arguments Tuesday, justices sounded skeptical of Bowman's assertion that Monsanto's patent should no longer apply to the commodity soybeans he bought at a grain elevator, even though most of them were genetically modified to resist Monsanto's Roundup herbicide.
Justice Stephen Breyer at one point appeared to reject Bowman's assertion that Monsanto's patent on its Roundup Ready soybeans was exhausted -- a legal term -- once they were mixed with other beans and then sold. While most farmers use those beans for animal feed, Bowman admittedly planted them, thereby avoiding the technology fee Monsanto collects.
"When you create a new generation (of seeds), you have created a patented item," Breyer said bluntly during an exchange with Bowman's lawyer.
In 2007, Monsanto sued Bowman for patent infringement and won a judgement of nearly $85,000. Bowman, of Sandborn, Ind., lost again when a U.S. Court of Appeals ruled that patent protection was still in force when he bought seeds from a grain dealer.
While patent challenges are relatively common, the case of Bowman v. Monsanto Co. is unique because, as Roberts observed, "the other cases haven't involved self-regenerating products."
The case is being closely watched by an array of interests, from farmers and agribusiness companies to patent experts and the software industry.
Critics of Monsanto view the case as an example of the Creve Coeur-based company bullying farmers and exercising unhealthy dominance over food.
Bowman's lawyer, Mark Walters, argued that his client was merely using the modified seeds rather than making them and therefore the patent was no longer in effect.
"It's never going to be a threat to Monsanto's business, people selling grain elevator seeds," he said. "They (Monsanto) want farmers to take all the risks of farming, yet they want to control how these seeds are used all the way down the distribution chain."
The federal government largely backed Monsanto's contention that overturning the case would all but eviscerate patent protection by letting farmers save seeds and replant them.
Deputy Solicitor General Melissa Arbus Sherry asserted that the so-called exhaustion doctrine governing the expiration of patents "has really nothing to do with this case. ... It would be nearly impossible to recoup your investment, and the consequence is that research dollars would be put somewhere else," Sherry said.
Monsanto lawyer Seth Waxman referred to genetically modified soybeans as "probably the most rapidly adapted technological advance in history." He said that about 90 percent of 275,000 acres of soybeans in the United States are engineered with herbicide resistance.
At times, the arguments consisted of educating the high court on farming and biotechnology. When Justice Elena Kagan spoke hypothetically of schoolchildren going to a supermarket to buy edamame to plant for experiments, Waxman reminded her gently that edamame are immature soybeans unsuitable for growing.
At another point, Waxman was describing the process of introducing new genetic material into tissue with a .22-caliber device called a gene gun.
"You can't rob a bank with it though, right?" Justice Antonin Scalia quipped.
After the session, Bowman said he couldn't assess the justices' comments because he had trouble hearing them.
"It doesn't matter if it's a gigantic company and I like them or not. If I've done something wrong, they have the right to come after me," he said, adding his belief that he had done nothing illegal.
Bowman said he understood that he could lose his appeal. "I was kind of lucky when they brought a suit against me that I was practically broke anyway," he said.
Asked if he would be able to pay Monsanto the $85,000 from the initial judgement, he replied, "I don't see how."
The court is expected to rule on Bowman's appeal by summer. His case is one of two before the high court dealing with patents on living organisms. Another case, revisiting whether human genes can be patented, is scheduled for hearing April 15.
Distributed by MCT Information Services
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