Region’s seed experts support court’s decision in favor of Monsanto

Some soybean and seed officials in North Dakota say they’re not surprised about the recent U.S. Supreme Court ruling that affirmed an Indiana farmer infringed a Monsanto seed patent by buying and planting bin-run soybeans containing the patented trait.

The Supreme Court on May 13 unanimously affirmed a federal circuit court case that said Vernon Hugh Bowman had improperly purchased soybean seeds containing Monsanto’s patented Roundup Ready trait. Bowman had filed the case initially in 2011. It was argued Feb. 19, 2013.

The court found Bowman had purchased licensed soybean seeds each year for his first crop, but the patent prohibited allow more than one planting. Bowman was ordered to pay $84,456 in damages and costs for infringing the patent.

Organizations that filed briefs in support of Bowman included the Center for Food Safety, Knowledge Ecology International, the Public Patent Foundation, the American Antitrust Institute and the Automotive Aftermarket Industry Association. Supporters of Monsanto included the American Seed Trade Association, CHS, and the American Soybean Association.

Theresa Bevilacqua, a Minneapolis-based partner for Dorsey and Whitney, which represents CHS Inc., wrote a supportive brief for Monsanto in the case. “If what Mr. Bowman was suggesting were true, it would disrupt the entire grain buying and delivering system in the country,” Bevilacqua says.

In an effort to avoid the patent and the high cost of patented seed for late-season plantings, Bowman purchased bin-run soybeans — soybeans harvested, delivered to a grain elevator and co-mingled with other farmers’ crops, but still having a high probability of containing Monsanto’s patented technology, Bevilacqua says.

Bowman was an “entrepreneurial, enterprising fellow” who “firmly believed that when you have a technology that is self-replicating, that Monsanto shouldn’t be able to have patent protection on the progeny.” She adds that Bowman had used the technology improperly through eight growing cycles, usually with a second-planting crop in a season. He self-reported to Monsanto, she says, so was looking to challenge the patent in court.

‘Run amok’

For farmers, it validates the use of patent-holder technologies and licensing agreements, and what maintains the status quo on seed certification and good farming practices. “It confirms what the vast majority of farmers are doing, that it doesn’t make sense to buy bin-run soybeans to get patent-protected seed,” Bevilacqua says.

Ken Bertsch, North Dakota State Seed Commissioner in Fargo says the court made the right call. “If they would have found in favor of Bowman, innovation in agriculture would have been severely curtailed, unless there were some other means for intellectual property developers to protect their property,” Bertsch says. “I don’t know anyone that would go to an elevator, taking a chance that grain he’s buying is Roundup Ready. That’s a ‘bin-run’ philosophy run amok.”

Most people who plant bin-run seed are planting cereal crops that are under federal Plant Variety Protection Act protection, Bertsch says, but those aren’t patented. Typically, this means they can keep and plant their own cereal seed, but can’t sell them to someone else unless they’re certified by an agency such as the State Seed Department.

“That’s one thing, but defying technology agreements and intentionally going to bin-run soybeans? That defies technology agreements and common sense,” Bertsch says.

Ken Nichols, director of research for the North Dakota Soybean Growers, says the case simply affirms laws that have been in place for a number of years. “We had a similar case, except that the farmers had taken their own soybeans and replanted them,” Nichols says. “Monsanto has the patent on that technology.”

Nichols says a very small percent of today’s soybeans are not glyphosate-resistant. He says he was surprised that Bowman had appealed. “It does not surprise me that he did not win his case,” he says.

The court noted that if a farmer could reproduce patented seeds through planting and harvesting without the patent holder’s permission, the patent would be meaningless. “If simply copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention,” the court ruling says. “And that would result in less incentive for innovation than Congress wanted.”

The court also rejected a “blame-the-bean” defense that claimed the soybeans are, to an extent, self-replicating.

Nichols says most farmers in North Dakota and surrounding areas buy high-quality, germ-tested seed, especially now because of high soybean prices. “Any time you plant bin-run, you’re planting something that’s inferior in quality,” Nichols says. “You might save seed costs, but you’re probably sacrificing profits in the long-term.”