Monsanto Likely to Score Supreme Court Win with Far-Reaching Benefits for Corporate Farming
On Feb. 19, 2013, the Supreme Court heard yet another Monsanto case. (And yet again, Justice Clarence Thomas, former lawyer for Monsanto, did not recuse himself.) This time around, it was Monsanto vs. Vernon Hugh Bowman, an Indiana soybean and wheat farmer.
The issue in question is a familiar one for those who follow the issue of genetically engineered seeds. Each buyer of Monsanto's patented seeds must sign a “Technology Agreement” and pay a technology fee. In the case of soybeans, soybeans themselves are seeds. A farmer who plants Monsanto’s patented soybean seeds will grow a crop of soybeans, which are themselves also seeds. The Technology Agreement prohibits the farmer from saving and replanting those seeds. It also forbids the buyer from doing research on Monsanto’s patented seeds.
In some cases, Monsanto licenses its genetically engineered seeds to other seed companies, like Pioneer (owned by DuPont). When a farmer buys Pioneer seeds with Monsanto patented genes in them, he pays one price for the seeds themselves – and that money goes to Pioneer – and a second fee, the Technology Fee, to Monsanto. The technology fee pays for Monsanto’s patented genes.
Because of the Technology Agreement and the patent on Monsanto’s genes, a farmer who saves and replants these seeds can be sued. Previously, Monsanto has filed 136 patent infringement lawsuits against 400 farmers and 53 small farm businesses. Monsanto has won 70 of these lawsuits, winning damages totaling more than $23 million.
There is almost no way to obtain Monsanto’s patented genes without paying for them via a Technology Fee and signing a Technology Agreement. But Bowman found one.
Instead of going to a seed dealer to buy seeds, Bowman went to his local grain elevator and bought some soybeans. These soybeans were a mishmash of every variety every farmer in his area grew and sold to the elevator. Some were Roundup Ready, meaning that they were genetically engineered to withstand Monsanto’s herbicide Roundup. Some were not. Different varieties within the mix mature at different rates and produce different yields. By any account, they were not terribly useful as seeds. But they were cheap.
The elevator was not selling its soybeans as seeds. To do so would be a violation of the law. After all, the soybeans in the elevator would make lousy seeds, given their lack of standardization and contamination with bits of dirt, rocks and debris. However, it imposes no restriction on its buyers. You buy from the elevator and nobody makes you sign a Technology Agreement. Most buyers plan to feed the soybeans they buy to livestock or use them for human consumption – not plant them.
Why would Bowman choose such a lousy – albeit cheap – source of soybean seeds? In his case, he has two different models of soybean growing on his farm. In some cases, he simply plows his field in the spring and plants soybeans like you might expect. When he does so, he buys high quality seeds and he pays full price for them. In 1999, he first bought Monsanto’s Roundup Ready soybeans for this use – and he paid the Technology Fee and signed a Technology Agreement.
In the second case, he grows wheat. After harvesting the wheat, he plants soybeans in the same field. Farmers sometimes call these “wheat beans.” Because he plants the wheat beans rather late in the season, the crop is relatively high risk. Instead of paying top dollar for seeds that might never produce a decent crop, Bowman planted the cheap soybeans he bought from the elevator.