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On the Environment

Wednesday, May 15, 2013
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Blame the Bean?

By Josh Galperin, Associate Director

The United States Supreme Court didn’t do anything particularly interesting on Monday, May 13. All they did was issue a sound ruling on a reasonably simple legal question. The problem is that the facts of the case deal with thorny social issues that fuel the blogosfire:  genetically modified foods and the role of multinational corporations.

The case, Bowman v. Monsanto, is about the use and re-use of genetically modified soybeans. Monsanto developed and sells Roundup Ready soybeans. The genetically modified (GMO) beans are pesticide resistant, allowing a farmer to spray the Roundup pesticide without harming the crop. Monsanto sells Roundup Ready soybeans with a license that allows the farmer to plant and harvest the first generation of beans but explicitly prohibits the farmer from saving seeds and planting a second generation. With this restriction Monsanto assures that any farmer who wants the benefit of Roundup Ready beans will pay for that benefit each year.

Vernon Bowman bought Roundup Ready soybeans each year for his full-season crop – but not for the late-season crop he planted after harvesting his winter wheat. Roundup Ready seeds cost 300 percent more than traditional seeds and because the yield of a late-season planting is lower, Bowman did not want to invest such a large sum. Instead he bought beans from the local grain elevator and planted them. Nearly all soybeans grown in the United States are Roundup Ready, so when Bowman sprayed Roundup on his late-season crop, nearly all the beans survived. In addition to selling these beans, Bowman saved seeds and used them on his double crop acres in following years.

Monsanto sued Bowman, arguing that its patent on Roundup Ready beans allows the company to restrict copying. Bowman countered that the legal doctrine of patent exhaustion protects him. Patent exhaustion prohibits a patent holder like Monsanto from controlling the use of its patented product after the patent holder’s initial sale. It is permissible, Bowmen therefore argued, to plant the offspring of patented soybeans because the patent exhausts after a farmer buys the seeds from Monsanto.

The Court disagreed.

As the Court explained, it is well settled law that the purchaser of a patented item may use that item as he wants, either using it directly, reselling it, or letting it rot in the basement. It is not, however, permissible to copy the patented item, which is what Bowman was doing by planting second-generation seeds. Emerging 3D printing technology provides a good example.  If I purchase a 3D printer I can use that printer to print widgets or I can sell the printer to somebody else, but I cannot use it to print an identical 3D printer. Patent exhaustion allows a buyer to do what she will with the purchased article, but not with the intellectual property that is embedded in that article.

Bowman also argued that this case is not an example of simple copying, as it would be with the printer, because the seeds grow naturally, without his initiative. The Court called this the “blame the bean” defense. Perhaps they would have been more sympathetic if Bowman could have argued that preventing growth of a second generation was a significant burden but in fact, it took significant effort—including planting, watering, spraying, and harvesting—to get the descendant generations.

The Supreme Court was in unanimous agreement about the extent of the patent protection in this case, which should blunt public outrage.  Nonetheless, the ruling has sparked hyperbolic and ideological arguments about the role of GMOs and corporate farming. Monsanto itself hailed the ruling as evidence that the Court recognizes that Monsanto’s GMO creation “feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.” On the other hand the Center for Food Safety, an organic and non-GMO advocacy group says the “Supreme Court Rules against Farmers.”  The patent protection given to the “agrochemical giant” is “destructive to farmers, agriculture as an industry, food security and consumer health and safety” according to the Center.

I tend to agree with the general positions of organizations like the Center for Food Safety. The hegemony of firms like Monsanto and the rapid spread of products like Roundup Ready soybeans are troubling from a social, economic, and environmental perspective. However, Bowman v. Monsanto is not about these larger issues. This is a case about patent law, not genetic modification or corporate dominance. The question presented to the court was not whether a company can patent genes or whether traditional farming practices trump organic agriculture. The question was whether a farmer may reproduce a patented seed without the patent holder’s permission.

Patent protection allows firms to invest in research and development with the knowledge that when they make a breakthrough they can profit from their investment without fear that after the first sale they will no longer control their intellectual property. Although this protection might seem dubious when it protects the genetic modifications of agrochemical giants, it is the same incentive that helps spur methane digesters, solar panels, smart meters, and other important technological advances that can benefit the environment and small farmers.

Posted in: Innovation & EnvironmentEnvironmental Law & Governance

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