Bowman v. Monsanto: The Price We All Pay for Roundup Ready Seeds

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Monsanto
AP
Last week, the Supreme Court delivered a unanimous decision that was hailed by some as a major victory for intellectual property rights. Others worried about the implications for agriculture, the very foundation of civilization; and in the background -- not raised by the nine justices, whom a recent study called "friendlier to corporate interests" than any court since 1946 -- was the question of prices for farmers and consumers.

The case was Bowman v. Monsanto Co. (MON), in which the court held that an Indiana farmer infringed on the biotech giant's patents when he planted genetically-modified soybean seeds not purchased from the company.

The seeds had been designed to withstand application of the herbicide glyphosate, which Monsanto markets as Roundup. Farmers who plant such "Roundup Ready" crops are required to sign an agreement with Monsanto stipulating that they will buy new seeds from the company each year, rather than using the products of the plants' reproduction.

Vernon Hugh Bowman
Getty ImagesPictured: Vernon Hugh Bowman
In 1999, for his main soybean crop, Vernon Hugh Bowman bought Monsanto's GM seeds, which can cost up to twice as much per acre as traditional seed. ("The difference in price is thought to reflect mainly royalties paid to Monsanto," according to The New York Times.) A late-season planting called for cheaper seeds, Bowman argued, being a riskier endeavor with respect to likely yield. So he purchased seeds normally sold for other uses, e.g. animal feed, at a grain elevator. Since, as the AP reports, "[m]ore than 90 percent of American soybean farms use Monsanto's seeds," it was highly likely that what Bowman bought would be glyphosate-resistant stock. That turned out to be the case, and Bowman planted the seeds for eight seasons.

But Monsanto is an aggressive protector of its patents: According to a 2005 report by the Center for Food Safety (CFS),

Farmers have been sued after their field was contaminated by pollen or seed from someone else's genetically engineered crop; when genetically engineered seed from a previous year's crop has sprouted, or "volunteered," in fields planted with non-genetically engineered varieties the following year; and when they never signed Monsanto's technology agreement but still planted the patented crop seed.

Monsanto says it does not "exercise its patent rights where trace amounts of our patented traits are present in farmers' fields as a result of inadvertent means."

In 2007, the company sued Bowman and won, to the tune of $84,456. Two appeals later the case reached the high court, where Bowman argued that Monsanto's patent was exhausted by the sale of its soybeans to the grain elevator; the company's lawyer countered that, if such an interpretation were upheld, there would be no commercial incentive for Monsanto to produce "what is, by now, the most popular agricultural technology in America."

The court was widely seen as completely sympathetic to Monsanto's side: "Why in the world," asked Chief Justice John Roberts, "would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?"

Justice Elena Kagan echoed Roberts's sentiment in her opinion, concluding that, if Bowman were to prevail, "The undiluted patent monopoly ... would extend not for 20 years as the Patent Act promises, but for only one transaction. And that would result in less incentive for innovation that Congress wanted." She seemed to ridicule the farmer's argument -- "we think that blame-the-bean defense tough to credit" -- and even suggested Monsanto's seeds might be "miraculous."

But the court refrained from using the occasion to issue a sweeping decision on patents. "Our holding today is limited," Kagan wrote, "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. In another case, the article's self-replication might occur outside the purchaser's control. Or it might be a necessary but incidental step in using the item for another purpose."

Despite this explicit limitation, Monsanto's statement sounded triumphant, tying the protection of its patent to the efforts of entrepreneurs everywhere -- even to the survival of the species:

The court's ruling today ensures that longstanding principles of patent law apply to breakthrough 21st century technologies that are central to meeting the growing demands of our planet and its people. The ruling also provides assurance to all inventors throughout the public and private sectors that they can and should continue to invest in innovation that feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.

What the company doesn't mention when touting the effects of its technology is the price paid by others for its profits (which were $1.48 billion in this latest quarter, up 22 percent from a year ago). According to the CFS, "From 1995-2011, the average cost to plant one acre of soybeans has risen 325 percent." Roundup Ready soybean seeds were introduced in 1996. The costs of planting other crops have skyrocketed as well, as consolidation in the seed business has left 53 percent of the global market in the hands of three corporations: Monsanto, DuPont (DD), and Syngenta (SYT). In that period prices shot up 516 percent for cotton, and corn seed prices rose by 259 percent. (Seventy percent of the corn and cotton grown in the U.S. is Roundup Ready, according to The New York Times.) In 2010, the spike in prices prompted an antitrust investigation of the seed industry, focused on Monsanto. That inquiry was closed last November, with no charges being brought.

Matt Wiggeim, right, and Cody Gibson mix Monsanto Co's Roundup herbicide near a corn field in Kasbeer, Illinois, U.S., on Monday, June 13, 2011. Photographer: Daniel Acker/Bloomberg *** Local Caption *** Matt Wiggeim; Cody Gibson
Daniel Acker/Bloomberg via Getty Images
Roundup itself has been linked to rising food prices, or at least the potential to drive costs up. In 2011, the journal Weed Science highlighted the growing phenomenon of glyphosate resistance, whereby overuse of Roundup creates aggressive, herbicide-immune super-weeds, which have to be deracinated or treated with even more toxic chemicals. If such plants continue to spread across farmland, labor costs could rise and yields decline, making grain more expensive.

Most fundamentally, Bowman v. Monsanto Co. confronts us with the question of whether living things should be subject to patent protection. (The Supreme Court first allowed this in 1980, when the organism in question was a bacterium engineered to break down crude oil.) Compared with its treatment of Bowman, the court was considerably more skeptical towards the idea of private companies patenting human genes, as raised by the recently-argued Assn. for Molecular Pathology v. Myriad Genetics. But though it's unsurprising that mankind's biological endowment should be treated more respectfully than that of a soybean, human life has long depended on the healthy functioning of agriculture.

As the CFS points out, the right to save seeds "has been central to farming for over 10,000 years." It's striking that the court wasn't more troubled by the privatization of what was once in large part a common store of value -- namely, the ability of nature to reproduce. "It is miserable for a farmer to be obliged to buy his Seeds," George Washington once said, providing the epigraph for the CFS's recent report "Seed Giants vs. U.S. Farmers"; "to exchange Seeds may, in some cases, be useful; but to buy them after the first year is disreputable." So much for originalism, Justice Antonin Scalia.

Moreover, Monsanto's patented seeds didn't achieve their present ubiquity through farmer choice alone: The company's expansionary policies of acquisition and licensing, as well as a shift in public university research from conventional seed breeding to biotech applications, have left many farmers unable to find high-quality non-GM seed. The implications for biodiversity should concern us -- to say nothing of the potential health effects of the widespread use Roundup -- no matter what we think of Bowman's "blame-the-bean" defense.

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86 Comments

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Sanjay Gandhi

Monsanto is going the same way as Apple and Microsoft-using the not-so-intelligent US Patent Office to extort money from the world. However, there is an additional issue here-it is more wrong to extort money from farmers, because in the end it is the abundance of food which leads to all the luxuries of life. That the US, the most agricultural friendly country in the world, falls for the silly science of Monsanto patents is a sad sad thing. The Justices are following the law--the problem is the zero-content science behind all these patents of Monsanto-where their seeds are shown to improve yield and be more resistant to pests (if you buy pesticide from Monsanto...surprise surprise).

Folks in the US need to wake up to this-Monsanto will establish an Apple or Microsoft like monopoly in the American Farmland-and that will be a terrible thing for the US (and the world).

Here is a more detailed explanation of what's really wrong with Monsanto (it is the bad, self-serving Science) if you are interested:
http://sanjayjohn.blogspot.com/2013/05/monsanto-real-problem.html

May 29 2013 at 3:14 AM Report abuse +1 rate up rate down Reply
ccm989

The Supreme Court was ruling on the patent's validity not on Monsanto's immoral destruction of the food system. Monsanto needs to be stopped contaminating our crops. Most of Europe has banned (and sometimes literally burned) GMO crops. We should encourage everyone to grow their own organic food so no matter how badly the Supreme Court rules in the future, we still have access to non-GMO food. Save your own seeds! Plant your own food! Remember he who controls the food, controls the world.

May 25 2013 at 9:43 AM Report abuse +3 rate up rate down Reply
jassamoyed

Eamon Murphy is essentiall illiterate when it comes to agriculture --any knowledgeable farmer know he can buy all the non GMO seed he wants -- the reasxon he does not and buys GMO seed it that they rpoduce better at a lower cost and make more money for the farmer --farm ers are s tupid ==writers like Murphy try to play on the unknowing public --why does an outfit like Wallstreet publish this junk

May 23 2013 at 5:55 PM Report abuse -1 rate up rate down Reply
1 reply to jassamoyed's comment
Sanjay Gandhi

the cost of signing up for years to buying monsanto seeds and pesticides is not considered well enough by the farmer...all is okay until you want to switch! reminds you of Microsoft or Apple?

May 29 2013 at 3:16 AM Report abuse +1 rate up rate down Reply
twobhk

Good to see Monsanto's share price crashing! Either Monsanto will stop mankind or mankind will stop Monsanto!!

May 23 2013 at 9:39 AM Report abuse +2 rate up rate down Reply
twobhk

March against the most evil company this weekend!

http://www.youtube.com/watch?v=ynyB2fNn8kQ
www.march-against-monsanto.com/p/blog-page.html

May 23 2013 at 9:38 AM Report abuse +2 rate up rate down Reply
parthenon1

Another weak kneed complaint about genetically engineered seeds. Any of these seeds or any animal growth plans have proven since time began that break throughs that have happened through out the ages have been good for today.
This is another Green farce like man-induced climate change. I was a teen ager in the 50's and remember the stormy times and drought that was blamed on "global cooling' they even considered creating more water by melting the polar ice caps. What happened then and I believe now is normal cyclical changes. If we go to screwing with weather or crops we will create a far worse problem

May 22 2013 at 5:13 PM Report abuse -1 rate up rate down Reply
eeverettm

Roundup and Monsanto is heading to a disaster that is going to affect us all. Their tampering with seeds and nature will eventually lead to Famine for the entire nation.

May 22 2013 at 5:06 PM Report abuse +3 rate up rate down Reply
wizeanne

No wonder Japan and Brazil....and other countries have seen the dangers and results of these GMO seeds and were smart enough NOT allow these Monsanto GMO pesticide seeds in their countries! Look at what happened in India with over 10,000 poor farmers committing suicide who had bought into these Monsanto seeds and went bankrupt and lost their farms! More EU nations are also waking up after seeing the facts and results of what these GMO seeds with pesticides have caused. How was Supreme Court Judge Clarence Thomas allowed to vote? Thomas should NOT been allowed to hear this case...defininitely a conflict of interests, since he was an attorney for Monsantos before becoming SCJudge! The hypocrisy is disgusting!

May 22 2013 at 4:57 PM Report abuse +4 rate up rate down Reply
lastcall14

Monsanto is an evil empire and its great that its starting to come to light. This keeps getting hushed and pushed under the rug, because Monsanto lines those politicians pockets and helps put these politicians in their jobs for the FDA and other policy maker boards. Wake up America.
Thanks for posting this story...please keep up the good journalism and God speed with you.

May 22 2013 at 3:28 PM Report abuse +3 rate up rate down Reply
chipn1ir

The farmer took beans iintended as feed--that's how it was purchased--and then intentional used it as seed. The farmer knew full-well that he could license the seed, if he wanted the benefitsof planting it instead. The licensing was, and is, hardly onerous.He deliberately infringed. The article here spins it like Monsanto was greedy and wrong. In fact, Monsanto is the injured party and they are to be applauded for the expense and risk of innovating the important GMO seed line.

May 22 2013 at 1:57 PM Report abuse -2 rate up rate down Reply
2 replies to chipn1ir's comment
gblank1603

Please stop confusing everyone with facts!!!!

May 22 2013 at 2:30 PM Report abuse rate up rate down Reply
wizeanne

Shhh! You're embarassing yourself! Nap time?

May 22 2013 at 5:00 PM Report abuse rate up rate down Reply