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WASHINGTON (DTN) -- U.S. Supreme Court justices seemed skeptical Tuesday of a farmer's attorney who argued his client isn't violating a Monsanto patent by buying soybeans from a grain elevator to plant with the expectation that those soybeans would carry the Roundup Ready trait.
Indiana farmer Vernon Bowman (far right) and his attorney talk to reporters following Tuesday's Supreme Court hearing over a case of Bowman buying and replanting Roundup Ready soybeans. (DTN photo by Chris Clayton)
Vernon Bowman, a 75-year-old farmer from Indiana, bought soybeans from a local grain elevator as a cheaper way to get a double-crop planting following winter wheat. He did so counting on the prospect that a high percentage of the seeds would be Roundup Ready.
Monsanto Co. sued Bowman in 2007 for patent infringement. Monsanto won at both the district court level and on appeal. The initial ruling against Bowman was for $84,456.
The Supreme Court opted to hear the case because of its unique nature as the first patent case involving a self-replicating technology -- in this case, soybeans. Chief Justice John Roberts asked early in the proceedings if anyone could duplicate a seed then, "Why in the world would anybody spend money to improve a seed?"
Bowman's attorney argued that Monsanto's patent rights were "exhausted" after the first crop is grown from those patented seeds. Progeny, as with those beans purchased from an elevator, should not be covered under such a patent, he said. The exhaustion doctrine, a common principle under patent law, says a patent holder's exclusive rights to a product are exhausted after an authorized sale and use of the product. Bowman's attorney, Mark Walters, said Monsanto doesn't have the right to carry forward its patent in second- or third-generation seeds after the first licensed seeds have been sold and planted.
"Under Monsanto's theory, there really is no limit to the exhaustion doctrine," Walters said.
Justice Stephen Breyer told Walters a farmer or anyone can do a broad array of things with soybeans they have grown. They can make livestock feed or "make tofu turkey," Breyer said. But one law says a person can't throw soybeans at someone. That's assault.
"Another law says you cannot make copies of a patented invention and that's the law you violated" by reproducing the soybeans with the patented trait, Breyer said.
Justice Sonia Sotomayor noted the exhaustion doctrine "never permits you to make another item."
Justice Ruth Bader Ginsburg also reiterated that the court had never applied patent law to allow someone to create a copy of an original.
Walters acknowledged that Bowman sprayed the soybeans with glyphosate to effectively select for the Roundup Ready trait, but added, "We disagree that the activity of basic farming is replicating the invention."
Bowman began buying soybeans from a local elevator and planting them on at least part of his farm as far back as 1999. Bowman understood the likelihood that soybeans he was buying would be resistant to glyphosate. He then began saving some of his harvested seed and replanting it.
Bowman wasn't exclusively buying seeds from the grain elevator to plant. Typically, he was still buying licensed seed from Pioneer for his main soybean crop. He bought the soybeans from the elevator mainly for double cropping.
Outside the Supreme Court building, Bowman said for years he had been able to buy commodity grain to plant as a second crop. He often would buy commodity wheat from a local elevator to plant, usually as a cover crop.
Read more
http://www.dtnprogressivefarmer.com...eference=0353b2fa-34a2-481b-912d-1cb46058ad3a
WASHINGTON (DTN) -- U.S. Supreme Court justices seemed skeptical Tuesday of a farmer's attorney who argued his client isn't violating a Monsanto patent by buying soybeans from a grain elevator to plant with the expectation that those soybeans would carry the Roundup Ready trait.
Indiana farmer Vernon Bowman (far right) and his attorney talk to reporters following Tuesday's Supreme Court hearing over a case of Bowman buying and replanting Roundup Ready soybeans. (DTN photo by Chris Clayton)
Vernon Bowman, a 75-year-old farmer from Indiana, bought soybeans from a local grain elevator as a cheaper way to get a double-crop planting following winter wheat. He did so counting on the prospect that a high percentage of the seeds would be Roundup Ready.
Monsanto Co. sued Bowman in 2007 for patent infringement. Monsanto won at both the district court level and on appeal. The initial ruling against Bowman was for $84,456.
The Supreme Court opted to hear the case because of its unique nature as the first patent case involving a self-replicating technology -- in this case, soybeans. Chief Justice John Roberts asked early in the proceedings if anyone could duplicate a seed then, "Why in the world would anybody spend money to improve a seed?"
Bowman's attorney argued that Monsanto's patent rights were "exhausted" after the first crop is grown from those patented seeds. Progeny, as with those beans purchased from an elevator, should not be covered under such a patent, he said. The exhaustion doctrine, a common principle under patent law, says a patent holder's exclusive rights to a product are exhausted after an authorized sale and use of the product. Bowman's attorney, Mark Walters, said Monsanto doesn't have the right to carry forward its patent in second- or third-generation seeds after the first licensed seeds have been sold and planted.
"Under Monsanto's theory, there really is no limit to the exhaustion doctrine," Walters said.
Justice Stephen Breyer told Walters a farmer or anyone can do a broad array of things with soybeans they have grown. They can make livestock feed or "make tofu turkey," Breyer said. But one law says a person can't throw soybeans at someone. That's assault.
"Another law says you cannot make copies of a patented invention and that's the law you violated" by reproducing the soybeans with the patented trait, Breyer said.
Justice Sonia Sotomayor noted the exhaustion doctrine "never permits you to make another item."
Justice Ruth Bader Ginsburg also reiterated that the court had never applied patent law to allow someone to create a copy of an original.
Walters acknowledged that Bowman sprayed the soybeans with glyphosate to effectively select for the Roundup Ready trait, but added, "We disagree that the activity of basic farming is replicating the invention."
Bowman began buying soybeans from a local elevator and planting them on at least part of his farm as far back as 1999. Bowman understood the likelihood that soybeans he was buying would be resistant to glyphosate. He then began saving some of his harvested seed and replanting it.
Bowman wasn't exclusively buying seeds from the grain elevator to plant. Typically, he was still buying licensed seed from Pioneer for his main soybean crop. He bought the soybeans from the elevator mainly for double cropping.
Outside the Supreme Court building, Bowman said for years he had been able to buy commodity grain to plant as a second crop. He often would buy commodity wheat from a local elevator to plant, usually as a cover crop.
Read more
http://www.dtnprogressivefarmer.com...eference=0353b2fa-34a2-481b-912d-1cb46058ad3a
