Monsanto’s stronghold over seed patents was reinforced recently when an appeals court in Washington D.C., handed down a decision upholding a prior ruling against an Indiana farmer, Vernon Bowman. The U.S. Court of Appeals for the Federal Circuit ruled that Bowman infringed on the company’s patents by planting and saving seeds containing Monsanto’s Roundup Ready technology even though Bowman argued that he bought those seeds as “commodity” seeds from a local grain elevator.
Commodity seeds are a mixture of undifferentiated seeds harvested from various sources, including from farms that grow Roundup Ready soybeans and those that do not. While Monsanto’s Technology Agreement with farmers has a long list of prohibitions imposed on the farmer,1 it does not prohibit farmers from selling seeds to local grain elevators as a commodity. The Court noted that:
Although the express terms of the Technology Agreement forbid growers to sell the progeny of the licensed Roundup Ready® seeds, or “second-generation seeds,” for planting, Monsanto authorizes growers to sell second-generation seed to local grain elevators as a commodity, without requiring growers to place restrictions on grain elevators’ subsequent sales of that seed.
Bowman said he purchased and planted seeds containing the Roundup Ready technology each year, beginning as early as 1999. He planted Roundup Ready seeds as his first-crop in each growing season during the years 1999 through 2007. “Consistent with the terms of the Technology Agreement, Bowman did not save seed from his first-crop during any of those years.”
Bowman also purchased commodity seed from a local grain elevator for a late season planting, or “second-crop” from 2000 through 2007. Unlike his first-crop, Bowman saved the seeds harvested from his second-crop for replanting additional second-crops in later years. He also supplemented his second-crop planting supply with periodic additional purchases of commodity seed from the grain elevator.
Monsanto investigated and then sued Bowman in 2007. The District Court ruled for Monsanto and ordered Bowman to pay the company $84,456.20.
On appeal, Bowman argued that Monsanto’s patent rights are “exhausted” with respect to all Roundup Ready soybean seeds that are present in grain elevators as undifferentiated commodity. Patent exhaustion doctrine entitles a consumer to use, repair, or resell patented products that they have purchased. In other words, Bowman argued, since the sales of second generation seeds by growers to grain elevators and then from grain elevators to purchasers like Bowman are authorized according to Monsanto’s Technology Agreement, that first unrestricted sale of a patented item “exhausts” Monsanto’s control over it and the company can not reach further into the stream of commerce to restrict the use of its seeds.
Monsanto argued otherwise. The patents, claimed Monsanto, were protected beyond the sale of a grower’s second-generation seeds to grain elevators as commodity seeds “[b]ecause of the express condition [in the Technology Agreement] that the progeny of licensed seed never be sold for planting.” According to Monsanto, “a grower’s sale of harvested soybeans to a grain elevator is not an ‘authorized sale’ when it results in those soybeans subsequently being planted.”
The Appeals Court agreed.
While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.
The patenting of seeds and the aggressive enforcement of of these patents represents a fundamental change of farming methods and food production, not just for U.S. farmers but for farmers around the world. Vandana Shiva, who has been instrumental in shedding light on corporate take-over of seed, has said that “seed is what makes the food, so when you control the seed, you control the food.” And as Henry Kissinger noted,”[he] who controls the food supply controls the people.”
- The Appeals Court summed up those prohibitions as follows: “to use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season”; (2) “to not supply any of this seed to any other person or entity for planting”; (3) “to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting”; and (4) “to not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data, or seed production.”