The farmer is Vernon Hugh Bowman, who tried to outsmart the agricultural giant by getting herbicide resistant soybeans from the operator of the local grain elevator. The decision has wide ramifications beyond the Indiana case.
Monsanto produces seeds for a number of crops, including soybeans, that are resistant to glyphosate, marketed as Roundup Ready. The company has caused controversy in Costa Rica because it seeks to plant genetically modified corn in a test plot. The corn is modified against the herbicide.
Bowman was a Monsanto customer for its special soybeans. But he also obtained soybeans from the local grain elevator that has been destined for food products, according to the Supreme Court summary prepared by the Legal Information Institute at Cornell University Law School. Bowman planted the soybeans and treated the emerging plants with Roundup. The resistant plants survived and produced seeds that Bowman used the next year, the summary said.
Monsanto considered this an assault on its Roundup patent. Lower courts agreed, but the elderly Bowman carried the case to the U.S. Supreme Court on the grounds that someone using a patented article has the right to sell it. That is called patent exhaustion.
The Supreme Court’s unanimous decision, drafted by Justice Elena Kagan, characterized Bowman’s activities as copying the seeds and not just selling ones he purchased legitimately from Monsanto.
Monsanto has been aggressive in protecting its patents. One concern of Costa Rican farmers is that they could be vulnerable if their own seed corn became pollenated with the genetically modified genes nearby. There have been court cases in the United States over this same issue.
Ironically, Mosanto’s Roundup Ready patent is due to expire next year. The company has come out with a new version that also is under patent.
Said the Supreme Court decision: “Bowman who is asking for an exception to the well-settled rule that exhaustion does not extend to the right to make new copies of the patented item. If Bowman was granted that exception, patents on seeds would retain little value. . . . Bowman, who purchased seeds intended for consumption, stands in a peculiarly poor position to argue that he cannot make effective use of his soybeans.”