The U.S. Supreme Court heard oral arguments Feb. 19 in Bowman v. Monsanto, a case that hinges on the extent of control that the developer of genetically modified seed can exert through multiple generations of seed.
A 75-year-old Indiana grain farmer observed as the U.S. Supreme Court weighed arguments over his right to plant and use seeds that he purchased legally. Bowman legally purchased seeds at a grain elevator, which bought them from farmers who had, with Monsanto's authorization, used the genetically modified Monsanto seeds to grow their soybean crops.
Bowman challenged the enforceability of Monsanto’s patent rights after taking the unconventional step of buying soybeans containing the patented technology from a local grain elevator and, from 1999 to 2007, repeatedly planting, cultivating, and harvesting them to create his own supply of soybeans containing the technology.
Monsanto claims that Bowman infringed its patents on herbicide-resistant plants and seeds by using the grain elevator seeds to grow his soybean crops. Bowman asserts that Monsanto's sales of the original seeds to authorized purchasers exhausted Monsanto's patent rights and therefore Monsanto cannot enforce its patents against second-generation and later seeds that resulted from planting the original seeds.
Monsanto’s arguments to the Court underscored the role that patent rights play in enabling innovation in biotechnology and other fields where breakthrough discoveries require substantial R&D investments that depend upon the protections afforded under U.S. patent law.
William H. Lesser, an expert on intellectual property and patents for plants, seed and animals, and professor of science and business at Cornell University, said, "A decision against Monsanto will have a significant chilling effect on private investment in ag-biotechnology. Because soybean seed reproduces true to type, if seed is saved and replanted, Monsanto would be in losing competition with farmer-saved seed after one or two seasons. Private investment will largely come to a halt."
In the agriculture sector alone, Monsanto and its competitors are investing billions of dollars annually on R&D in agricultural advancements, and pursuing novel approaches through plant breeding and plant biotechnology to make crops higher yielding and more resistant to various environmental stresses.
“One can predict with confidence that the implication for the Monsanto case is similar to an issue which was dealt with in 1930. Prior to that time, it was legal to regenerate and sell asexually propagated plants — roses, tulips, fruit trees — and since they are identical clones, there was little opportunity for breeders to recover their costs. The Plant Patent Act of 1930, the first law worldwide to provide patent protection for plants, was passed to provide breeders the same rights and opportunities as the inventors of mechanical inventions,” Lesser added.
Monsanto said the case highlights the crucial role that patent protection plays in fostering and protecting U.S. innovation across a broad range of industries—including agriculture, medicine, computer software, and environmental science.
A number of independent organizations and individuals filed amicus curiae (“friend of the court”) briefs urging the Supreme Court to uphold the lower courts’ rulings in favor of Monsanto. This broad group included leading universities and research institutions; national farm groups representing virtually all of the nation’s corn, soybean, sugar and wheat growers; biotechnology companies; professors of economics and intellectual property; and representatives of the computer software industry. The briefs from the farm organizations highlighted the importance of patent protection in supporting agricultural innovation, which continues to bring about higher-yielding crops that are better equipped to withstand increased environmental stresses.