Supreme Court sympathetic to Monsanto's patent claims

Vernon Hugh Bowman, a 75-year-old Indiana soybean farmer, accompanied by his attorney Mark Walters, speaks with reporters outside the Supreme Court in Washington, Tuesday, Feb. 19, 2013, after justices heard oral arguments between Bowman and high-tech agriculture company Monsanto Co. that produces genetically engineered and patented seeds. AP Photo/J. Scott Applewhite

The multinational biotech giant Monsanto brought in more than $13 billion in revenues in 2012. Yet the company went all the way to the Supreme Court today to argue that Vernon Hugh Bowman, a 75-year-old soybean farmer from Indiana, owes it $84,000 for planting its patented seeds without permission.

Bowman is a man of modest means who only pursued his case this far because he had little to lose. "I have one good thing going for me," Bowman said today. "I'm poor as nothing, so they can't take a couple of thousand acres away from me in lawsuits. So, I was kinda lucky when they brought a suit against me that I was practically broke anyway."

Yet if Bowman wins, Monsanto argues, it could cripple its business model of producing genetically-enhanced seeds. The justices today -- both conservative and liberal -- seemed to agree with Monsanto's point of view.

"Why in the world 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?" Chief Justice John Roberts asked.

Bowman was a loyal Monsanto customer, purchasing the company's soybean seeds -- bred to survive exposure to Roundup pesticide -- every year and signing an agreement that prohibited him from planting second-generation seeds. However, for the off-season, Bowman purchased seeds from a crop elevator -- second-generation Monsanto seeds mixed up with "junk" seeds, primarily used for animal feed. He correctly assumed he'd be able to use those cheaper seeds with Roundup. Monsanto took Bowman to court in 2007 over the profits he made off of his Monsanto seeds in the off-season.

At issue is whether Monsanto's patents apply second-generation seeds and subsequent generations. The implications for the court's ruling could extend beyond soybean fields to other "self-replicating" technologies like stem cells and nanotechnology. A new interpretation of patent law could potentially also have implications for industries where patented products are resold, such as the auto industry.

That's why outside groups filed nearly two dozen amicus briefs with the Supreme Court in the case of Bowman v. Monsanto, with most in support of Monsanto. Monsanto's backers include groups like the Biotechnology Industry Organization, the U.S. government, and the Software Alliance, which represents like Apple and IBM. On Bowman's side are groups such as the National Family Farm Coalition and the Automotive Aftermarket Industry Association.

Bowman's lawyer argued today that the biotech company is trying to extend its patent protections too far. Under Monsanto's theory, "any farmer who grows a soybean seed is infringing the patent but for the grace of Monsanto," Bowman's attorney Mark Walters said in court today.

Liberal Justice Stephen Breyer, however, pointed out that while planting second-generation seeds from the grain elevator may have violated patent law, the seeds could still prove useful for farmers.

"There are a lot of things you can do with it," he said. "You can feed it to animals, you can feed it to your family, make tofu turkeys. I mean, you know, there are a lot of things you can do with it, all right. But I'll give you two that you can't do. One, you can't pick up those seeds that you've just bought and throw them in a child's face. You can't do that because there's a law that says you can't do it. Now, there's another law that says you cannot make copies of a patented invention."

Arguing that extending patent law this far would be too sweeping, Bowman's attorney argued that contract law would be the appropriate way to protect self-replicating technologies. Justice Elena Kagan, however, said "that answer is purely insufficient in this kind of a case, because all that has to happen is that one seed escapes the web of these contracts, and that seed, because it can self-replicate in the way that it can, essentially makes all the contracts worthless."

Monsanto's lawyer, Seth Waxman, compared the case of Monsanto's seed to another live technology that can replicate itself -- vaccines.

"When Schering-Plough or Bristol-Myers develops a vaccine and sells some of it to CVS so I can go in and get injected, they haven't lost all of their patent rights in that vaccine," he said. "CVS can't turn around and become a competitor."

The Supreme Court also heard the U.S. government's argument in favor of protecting Monsanto's patent protections.

Arguing for the government, attorney Melissa Arbus Sherry compared self-replicating seeds to software. "If you think of software, for example, there are plenty of other products where one reasonable use is to make more," she said. "I can purchase software; one reasonable use would be to make a dozen other copies to give to my friends or sell on eBay. It's a reasonable use, but it's an infringing one."

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