Supreme Court hands Monsanto a GMO victory

The Supreme Court sided with Monsanto Co. on Monday, ruling against a farmer who used beans grown from the company’s patented, genetically modified soybean seeds to plant subsequent crops. It was apparently the first time the court had upheld patent protections on a self-replicating product -- in this case, a soybean that could survive being doused with Monsanto’s Roundup herbicide. And it drew a flurry of warnings online about the implications for non-GMO foods and the food supply in general.

David Kravetz of Wired’s Threat Level blog offered this apocalyptic-sounding take Monday:

“Regardless of how unnatural the conditions may seem, the licensing agreement with farmers also forbids the seeds to be resold for commercial planting, and they cannot be used for research, crop breeding or seed production. Welcome to farming in the age of patented, genetically modified organisms.�

The court’s ruling was simpler than that, and a lot less diabolical. The justices said that farmers who buy seeds that are patented may not make copies of them without the patent owner’s permission, just as they may not make a copy of a patented piece of machinery or a patented device that connects their computers to the Internet.

The case before the court focused on farmer Vernon Bowman, who planted two crops of soybeans a year: one from Roundup Ready seeds he’d purchased from a local dealer, and a later crop from soybeans he’d bought from a grain elevator. The latter were a mix of Roundup Ready and other beans that couldn’t tolerate the herbicide, so when Bowman planted and sprayed them with the weed killer, he was left with a fairly pure batch of Roundup Ready soybeans. He sold part of that batch but held part back to plant another crop the following year, then repeated the process (supplemented by more seeds from the grain elevator as needed) for the better part of a decade.

Monsanto sued Bowman for violating its patent, but Bowman’s lawyers argued that the patent was “exhausted� as soon as the buyer of the seeds planted them. The doctrine of patent exhaustion hold that the patent holder’s control over a patented item ends once it it sold. Bowman’s attorneys argued that patented soybean seeds naturally grow into soybeans that are, themselves, seeds for new crops. So once farmers buy seeds, they argued, Monsanto can’t legally stop them from replanting the beans those seeds produce.

Justice Elena Kagan, in a compact opinion for a unanimous court (and how often do you see that phrase these days?), said Bowman certainly had the right to eat the soybeans he bought from the grain elevator, or feed them to his animals or resell them. What he didn’t have the right to do was make a copy of them. And that’s what he did by replanting them.

Farmers who plant Roundup Ready seeds can’t help but make a copy of Monsanto’s patented invention; as Bowman’s side noted, that’s what seeds do. But Monsanto grants farmers who buy the seeds a license to make that first generation of copies, Kagan noted. Otherwise, it wouldn’t be able to sell them.

Some of Bowman’s allies warned that the ruling had dangerous implications for farmers and consumers. “Our nation’s family farmers grow our food on farms where cross-pollination between organic, non-GMO crops and Monsanto’s patented genetically engineered ... crops is a regular and naturally occurring process,� Dave Murphy, founder of Food Democracy Now, said in a statement. “The court’s decision to give Monsanto the power to control the future harvest of America’s family farmers and our country’s food supply is deeply troubling, immoral and a very bad sign for the future of our nation’s food supply.�

But Bowman doesn’t provide a case in point for Murphy.

First, he acquired the seeds for his second crop an atypical way. Grain elevators sell soybeans for consumption, not for planting. Farmers who don’t have their own reserves of seeds usually buy them from dealers, where they can choose nonpatented versions. Monsanto’s soybeans dominate the market, but that could reflect farmers’ eagerness to use Roundup, not some insidious behavior by Monsanto. And patent protection is for 20 years, not forever.

Second, Bowman didn’t wind up with second crops full of Roundup Ready soybeans by happenstance. By using the weed killer, he effectively filtered out the non-Monsanto seeds. In Kagan’s view, that was a deliberate strategy by Bowman because he preferred Roundup Ready fields.

The ruling should have come as no surprise; the court held in 2001 that seeds were patentable, and that farmers who purchase patented seeds could not legally replant the seeds harvested from the crops grown. To rule otherwise, Kagan said, would mean that “a patent would plummet in value after the first sale of the first item.... And that would result in less incentive for innovation than Congress wanted.�

Kagan made clear that her ruling applied only to the case at hand, not self-replicating plants in general. She noted that other cases might involve products that copy themselves outside the purchaser’s control, or the copying might be “a necessary but incidental step in using the item for another purpose.� She left open the possibility that such different circumstances would produce different results.

The Bowman case was just one of the court battles centering on patented seeds, and Monsanto’s critics will have other opportunities to address the company’s tactics in the market. The Supreme Court dealt only with the company’s ability to recoup its investment in genetically modified soybeans by barring farmers from turning one generation of seeds into an endless supply. If Monsanto didn’t have that ability, it wouldn’t make that investment -- or it would have to sell the seed for a considerably higher price. Granted, that would be a victory for the folks who don’t like genetically modified organisms. But the popularity of Roundup Ready seeds suggests that such a loss for Monsanto wouldn’t be a win for farmers.

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Follow Jon Healey on Twitter @jcahealey