SANDBORN, INDIANA – Farmer Hugh Bowman hardly looks the part of a revolutionary who stands in the way of promising new biotech discoveries and threatens Monsanto’s pursuit of new products it says will “feed the world.”
“Hell’s fire,” said the 75-year-old self-described “eccentric old bachelor,” who farms 300 acres (120 hectares) of land passed down from his father. Bowman sat in a recliner with his boots off, wearing reading glasses that still had the tag that once held them to a drugstore rack, and a Monsanto promotional cap on his balding head. “I am less than a drop in the bucket.”
Yet Bowman’s unorthodox soybean farming techniques have landed him at the center of a national battle over genetically modified crops.
His legal fight, now at the U.S. Supreme Court, raises questions about whether the right to patent living things extends to their progeny, and how companies that engage in cutting-edge research can recoup their investments.
What Bowman did was to take commodity seeds from the local elevator, which are usually used for feed, and plant them.
But those seeds were mostly progeny of Monsanto’s Roundup Ready beans because that is what most Indiana soybean farmers grow. Those soybeans are genetically modified to survive the herbicide Roundup, and Monsanto claims that Bowman’s planting violated the company’s restrictions.
Those supporting him hope the court uses the case, which is scheduled for oral arguments later this month, to hit the reset button on corporate domination of agribusiness and what they call Monsanto’s “legal assault” on farmers who do not toe the line. Monsanto’s proponents say advances in health and environmental research are endangered.
And the case raises questions about the traditional role of farmers.
For instance: When a farmer grows Monsanto’s genetically modified soybeans, has he simply “used” the seed to create a crop to sell or has he “made” untold replicas of Monsanto’s invention that remain subject to the company’s restrictions?
An adverse ruling, Monsanto warned the court in its brief, “would devastate innovation in biotechnology,” which involves “notoriously high research and development costs.”
“Inventors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies,” Monsanto stated.
Bowman said the company’s claim that its patent protection would be eviscerated — should he win — is “ridiculous.”
“Monsanto should not be able, just because they’ve got millions and millions of dollars to spend on legal fees, to try to terrify farmers into making them obey their agreements by massive force and threats,” he said.
Bowman’s squat white farmhouse on the outskirts of his down-at-the-heels hometown is now filled with stacks of documents. There are legal procedure books under the living room end table and a copier in the bedroom that regularly churns out his six-page statement of events.
The journey from Sandborn to the U.S. Supreme Court is a trip through modern American agribusiness and patent law — an increasing part of the court’s docket but a complex legal area that even the justices of the top court approach with some trepidation.
At issue is Monsanto’s ubiquitous weed killer, Roundup, which has revolutionized U.S. farming. “Weeds are the most significant economic challenge to global food production,” said a brief by the American Soybean Association, which supports Monsanto’s case.
Weeds compete with crops for water, nutrients and light, and Roundup has been especially effective in combatting them. The herbicide’s active ingredient, glyphosate, kills almost everything — including conventional soybeans.
So, in 1996, Monsanto offered a genetically modified soybean that was resistant to glyphosate, and despite alarm from some who oppose such engineering it has been wildly successful. Through its own seeds and by licensing the technology to other seed producers, a little more than a decade later more than 90 percent of the soybeans grown in the United States are Roundup Ready.
Farmers who buy seeds with the Roundup Ready trait sign an agreement that states they may be used for one planting only. Even though the gene exists in the new beans they grow, farmers cannot save them for a second planting, nor sell them to others for that purpose.
But they are allowed to sell the beans to giant grain elevators, such as those that are the most prominent feature on the flat landscape in Bowman’s corner of southern Indiana.
From 1999 to 2007, Bowman purchased Roundup Ready seeds for his first planting of soybeans and abided by Monsanto’s restrictions. But like some farmers, he also plants a second crop later in the growing season. Such crops are highly dependent on the weather, which makes them more hit or miss.
It is too risky to pay the high price of Monsanto’s Roundup-resistant seeds for the second crop of the season, Bowman said, so he instead purchased cheaper commodity seed from the local elevator that is usually used for feed. He planted it, and when he sprayed the crop with the herbicide, almost all survived. That was not surprising, because 94 percent of Indiana soybean farmers grow Roundup Ready beans.
Bowman told Monsanto exactly what he was doing, and Monsanto told him to stop.
The farmer was in effect “soybean laundering,” according to some of the companies supporting Monsanto at the Supreme Court: selling Roundup Ready progeny beans to the grain elevator and hoping other farmers were too, then buying them back and planting them.
The company sued after Bowman ignored its warnings and won a judgment of nearly $85,000. Bowman had argued that under long-standing legal precedent, Monsanto’s patent claims ended — were “exhausted” in legal jargon — once Bowman purchased the Roundup Ready seed.
But the U.S. Court of Appeals for the Federal Circuit, the specialized court that hears patent cases, disagreed, and said Monsanto could place restrictions on farmers’ use of progeny beans. In addition, the judges said that even if Monsanto’s patent was exhausted by the original sale, Bowman was creating copies of the company’s technology.
“While farmers, like Bowman, may have the right to use commodity seeds as feed . . . they cannot ‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants,” the federal appeals court ruled.
It was one in a string of victories for Monsanto at the Federal Circuit. But the Supreme Court in recent years has taken a much more aggressive stance in reviewing the lower court’s patent rulings. Even though the Obama administration, at the justices’ invitation, said the ruling should be affirmed, the court accepted Bowman’s appeal. The case is Vernon Hugh Bowman v. Monsanto.
Those worried about genetically modified crops — now dominant in corn, sugar beet and canola production, as well as soybeans — say Bowman’s case presents a microcosm of the state of American agribusiness, where corporations dominate and bully farmers through lawsuits.
“The current intellectual property environment of transgenic crops has spurred the privatization and concentration of the world’s seed supply,” said a brief filed by two groups that have been highly critical of Monsanto and genetically modified crops, the Center for Food Safety and Save Our Seeds. “Market concentration has resulted in 10 multinational corporations holding approximately two-thirds (65%) of commercial seed for major crops, reducing choice and innovation, and increasing prices for the American farmer.”
The brief asks the court to end the practice of allowing corporations to place conditions on the sale of its seed and to reject an “end-run around patent exhaustion” for regeneration. “Farming is using seeds, not constructing or manufacturing seeds,” the brief states.
Monsanto, alarmed at the possibilities of what the Supreme Court might chose to do, has circled the wagons.
The Biotechnology Industry Organization warns that advancements in agricultural, medical and environmental research “depend critically on a strong, stable and nationally uniform system of patent rights and protections.” Universities, economists, intellectual property experts and seed companies have weighed in on Monsanto’s behalf.
Bowman originally represented himself, with the help of a local attorney, in the legal proceedings. But now Seattle lawyer Mark P. Walters and his intellectual property law firm are working pro bono on Bowman’s behalf.
Walters described Monsanto’s dire claims as “really, such an exaggeration.”
Monsanto can protect itself through contracts, for example, requiring grain elevators to impose restrictions against planting commodity seed. The company could even ensure that resistance to its Roundup herbicide does not pass on to the next generation of soybeans, ensuring that farmers would have to buy, rather than save, seeds.
Monsanto rejects those alternatives as unworkable. Bowman, meanwhile, denies that he has found an ingenious loophole around the firm’s restriction.
“I see no threat in what I’ve done,” he said. “If there was, there’d surely be a hell of a lot of other farmers doing it. As far as I know, I’m the only damn dumb farmer around (that has tried).”