Tuesday, October 9, 2012

Bowman v. Monsanto: An Important Case for Agricultural Biotechnology

The Supreme Court recently granted certiorari in Bowman v. Monsanto, an important case for agricultural biotechnology. If the Supreme Court decides to overrule the Federal Circuit's decision in favor of Monsanto, it could seriously impact the ability of agricultural biotechnology companies to recoup their investment in developing traits for seeds that farmers can harvest and replant, such as soybeans.

Prior to agricultural biotechnology, there was little incentive to invest in the development of improved seeds, since farmers have historically been able to save and replant second-generation seeds, preventing seed innovators from recouping the value they create in their seeds. The exception has been hybrid corn, which cannot be saved for replanting without losing beneficial characteristics of the hybrid, effectively forcing farmers to buy new seed each year. This natural technological restriction on seed saving encouraged investment by seed companies such as Pioneer in the development of improved strains of hybrid corn.

In the 1990s scientists at USDA and Delta Pine Land, a cotton biotechnology company subsequently purchased by Monsanto, developed genetic use restriction technology (GURT). GURT allows for the production of seeds that germinate and produce second-generation seeds, but those second-generation seeds are sterile. In effect, this would allow a seed company like Monsanto to impose a technological restriction on the ability of farmers to save and replant seeds, analogous to the inherent restriction on the replanting of hybrid corn. It would also allay concerns that genetically modified crops might escape into the environment and cause environmental harm. However, anti-biotechnology activists learned of GURT and dubbed it "Terminator" technology, and made it a public relations disaster for agricultural biotechnology, and particularly Monsanto. Agricultural biotechnology companies like Monsanto have not used GURT in their products, but have instead relied upon patents to prevent farmers from saving and replanting seeds. In 1999, Monsanto pledged not to use GURT in its products.

Instead, Monsanto has relied upon patent and contract law to prevent replanting of second-generation patented seeds. Basically, purchasers of seeds containing a patented Monsanto trait, such as Roundup Ready soybean, are required to sign a contract agreeing not to save second-generation seeds for replanting. Farmers are of course able under the contract to harvest the seeds for use as food or feed. A number of farmers challenged the enforceability of this system on a variety of grounds, but in 2002 and 2006 the Federal Circuit issued decisions upholding the validity of the arrangement in Monsanto v. McFarling and Monsanto v. Scruggs, respectively. In those cases, the farmer saved and replanted seeds harvested from their own fields, which the Federal Circuit held to constitute infringement of Monsanto's patents.

In 2008, the Supreme Court's decision in Quanta v. LG Electronics cast some doubt on the ability of Monsanto to use patents to prevent replanting of second-generation seeds. In Quanta, the Supreme Court overturned the Federal Circuit's decision that patent owners could place conditions on sales, and held that the authorized sale of a patented product exhausts patent rights in the product. Arguably, Quanta could be interpreted as precluding Monsanto from claiming patent rights in the progeny of seed that had been the subject of an authorized sale, as discussed in a previous post.

In Monsanto v. Bowman, the Federal Circuit held that even post-Quanta Monsanto was not barred by the first sale doctrine from enforcing its patents against farmers who save and replant second-generation seeds. Vernon Bowman is a soybean farmer, and for years he has purchased and planted Roundup Ready soybean, and signed the agreement not to replant. However, he later began purchasing commodity soybeans from a grain elevator that he knew probably were Roundup Ready, planting those seeds, and then harvesting and replanting some of the second-generation seeds grown in his field. He apparently believed that since he did not sign agreement with respect to commodity seeds he was not barred from replanting them. He sprayed the soybeans twice during the season with Roundup, demonstrating that not only did he know that the seeds are Roundup Ready, but also that he was using the glyphosate-resistance properties of the plants.

The Federal Circuit rejected Bowman's argument that his activities were protected by the first sale doctrine. The court held that his purposeful planting and growing of the second-generation seeds constituted more than simply "using” the patented seed, but impermissibly "making" patented product in violation of Monsanto's patent.

In his petition for certiorari, Bowman argues that the ability to make second-generation seed is an inherent characteristic of seeds, and that his natural and foreseeable use of the seeds to produce second-generation seeds is permitted under the first sale doctrine, regardless of whether he sells the seed for use as feed or replants it.

The US solicitor general was invited to file Amicus brief in the case, and did so, advising the Supreme Court not to grant certiorari. The solicitor general agreed with Monsanto and the Federal Circuit that the first sale doctrine under Quanta does not extend to second-generation seed.  The Federal Circuit and solicitor general recognize that the interpretation of the first sale doctrine advocated by Bowman would severely limit the ability of biotechnology companies like Monsanto to recoup their sizable investment in developing agricultural traits.

The grant of certiorari is presumably cause for great concern to Monsanto and other agricultural biotechnology companies selling patented seed that can be saved and replanted. In recent years, when the Supreme Court has granted certiorari in patent cases it has tended to reverse the Federal Circuit, for example in Prometheus, Quanta, KSR, Bilski and Festo.  Because the Federal Circuit is generally the only Court of Appeals to decide patent cases, Supreme Court normally does not accept patent cases to resolve split between the circuits. The fact that it took the case suggests to me that at least some Justices question the Federal Circuit's decision in Monsanto v. Bowman. Of course, that does not necessarily mean the Court will reverse. For example, in LabCorp v. Metabolite (2006) the Supreme Court dismissed a petition for certiorari as improvidently granted, although three of the justices filed a dissent indicating they would have decided the case and overruled the Federal Circuit's decision.

Supporters of Bowman argue that they Federal Circuit's decision will end the long-standing practice of farmers saving and replanting seeds, and of grain elevator selling commodity seeds. They point out that today most of the soybeans collected by grain elevators and sold as commodity seeds contain the patented Roundup Ready trait, since most farmers are planting Roundup Ready soybeans. However, in this case Bowman clearly knew that the seeds he planted were Roundup Ready, since he sprayed the fields repeatedly with Roundup, which he would not have done if he thought he had planted non-glyphosate resistant seeds. I very much doubt whether Monsanto has sued any farmer who bought commodity seeds that happened to include the Roundup Ready trait, but who did not take advantage of the patented trait by using Roundup on his fields. Such a case of inadvertent infringement would clearly raise substantial policy issues, but those are not the facts of this case.

If the Supreme Court reverses the Federal Circuit and holds that companies like Monsanto cannot use their patents to prevent replanting a second-generation seeds, it would be analogous to interpreting the first sale doctrine in copyright as permitting anyone who buys a CD or DVD to make unlimited copies and sell those copies. Clearly the first sale doctrine does not go that far in copyright, and I don't think it should go that far in patent law with respect to self-replicating technologies like seeds. I don't think a farmer who innocently plants commodity seeds that happen to contain the patented Roundup Ready trait, and who does not take advantage of that trait by using Roundup on his fields, should be liable for patent infringement. But I don't think a farmer should be able to take advantage of the first sale doctrine to purposely acquire and grow patented seeds, benefit from the Roundup ready characteristics by using Roundup on the crops, and then use the first sale doctrine as a defense.

If the Supreme Court sides with Bowman in this case, I'm not sure what Monsanto and other agricultural biotechnology companies will do. They might have to alter their licensing practices, as discussed in a previous post. Perhaps they will have to reconsider the use of GURT or some other technological solution in lieu of patents.


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David said...

Don't you think your analogy is flawed? Records cannot reproduce themselves. Seeds, on the other hand, are naturally a means of reproduction.

Chris Holman said...

David Koepsell makes a valid observation, the analogy between records (or more generally copyrighted material fixed in a machine-readable medium of expression) is not perfect, since seeds generally can reproduce absent human intervention. However, in practice reproduction of Monsanto's patented seeds usually involves human intervention. Farmers plant the seeds, and there is no dispute that in this case Bowman was instrumental in causing the seeds to reproduce in his fields, knew that these were not just "commodity" seeds and in fact were Roundup ready, and took advantage of that fact by spring his fields with Roundup. In doing so, he was putting other farmers at a competitive disadvantage since they had to pay for the valuable glyphosate resistance trait. I agree it would be very problematic if Monsanto had sued a farmer just because a seed happened to reproduce itself on his property, and the farmer had not actively participated in causing reproduction, but to my knowledge Monsanto has never sued anyone for passively permitting a patented seed to reproduce. So I think there is a good analogy between a farmer like Bowman and somebody who intentionally copies a copyrighted musical performance and then sells those pirated copies for profit.

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David said...

Put another way, Monsanto put all farmers at a competitive disadvantage through their state-sponsored monopoly. Point taken, though. It seems that we need to treat reproduceable tokens as something different somehow and come up with a new rule for exhaustion for them to satisfy the aims of certain new technologies under the current regime. It seems like the notion of private property is threatened by copyright and patent if our abilities to do with the tokens we hold continue to be limited, as in this and the Kirtsaeng case.

Anonymous said...

In an environment with sufficient glyophsate load and nonresistant partners to outcross, glophysate resistance CANNOT be prevented from spreading. The same with pests and pest resistance.

Some may have heard of this process. There are even formulae to calculate a good estimate for speed by which it spreads.

Some boffins out there made a name for this stuff: it is called "evolution".

Similarly, a GURT seed has an evolutionary fitness of zero by definition. Any mutation that will disable the "terminator" will thus increase the evolutionary fitness of the seed in relation to the unmutated state by an *infinitely high* proportion. Inviable -> viable is the BIG JACKPOT in Darwin's lottery. Meaning the establishment of a deGURTed seedstock CANNOT be prevented (except - and even then not certainly - by a megaextinction event) once there is anything to out- and backcross to.

Non-GMO cultivars provide a proof to the point: requirement for cultivar protection ("seed patenting") is a distinctive trait that breeds true (or can be reproduced dependably, for F1 seeds). But in practice nobody does that except with traits that are highly deleterious for the plant's lineage (cannot survive without dedicated and massive human intervention). Like flore plena cultivars, which are generally sterile. It works no other way; even PCR could not (in dubio pro reo) prove without reasonable doubt that the individuals in question are not the offspring of some homoplasious (independently mutated) "sport". So most non-GMO cultivars registered for legal protection carry a whole batch of novel traits. Molecular proof is given by verifying a distinct and unique *haplotype across loci*, not some SNP or indel.

TL;DR: The law is Creationist here, to the detriment of all involved except the attorneys, and maybe not even them because they have to do hard and ugly work for their money.

Anonymous said...

(sry for the glyphosate fuckup in 1st para. Should have caught it but didn't)

Anonymous said...

For what it's worth, while transgenic hybrids cannot be productively replanted by farmers regardless of legal protection, they can be cannabalized and their transgenic traits sold by competeting companies at a fraction of the R&D time and cost required to create the novel trait in the first place. I don't see how overturning this protection would avoid severly chilling a technology/market that as it is, is already only profitable for the most massive market traits.


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Anonymous said...

>Perhaps they will have to reconsider the use of GURT

But only within the USA, as GURT used outside of the USA satisfies the criteria of being a WMD (Weapon of Mass Destruction) and hence illegal to trade internationally.

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