Monday, February 18, 2013

Monsanto vs. Everyone

It's in the news again this week as no less an authority than the US Supreme Court takes up the case, Bowman v. Monsanto.

Let's look at the particulars: Vernon Bowman, farmer, grows soybeans on his farm.  For his first planting he uses Monsanto's genetically engineered "Roundup Ready" soybean seed.  He signs a contract ensuring he will not save any back for replanting and according to him, he doesn't.

What he does do, however, is he purchases soybean seed from the local grain elevator for his second crop.  And therein lies the rub.

This case has already gone up in a couple of lower courts and in both cases the court upheld Monsanto's argument.

Monsanto insists that Bowman is infringing on their patent by availing himself of Roundup Ready seed that is mixed in with the "commodity seed" provided by the elevator.  Monsanto says Bowman is experiencing yields larger than he should if he were using non-Roundup Ready seed, and that he should have to pay a fine for infringing on Monsanto's patent, and for contract violation.

I've seen Monsanto take on farmers before, including a suit which they brought against a farmer - and won! - for having Roundup Ready canola plants in his fields even though he hadn't bought any Roundup Ready seed - the plants were there as a result of windborne contamination.

One wonders a few things:

1) How many spies does Monsanto employ, to keep such tabs on things like whether there is a small portion of RR plants growing in a field where there shouldn't be any?

2) How much diligence is due on the farmer's part?

The point behind Roundup Ready seed is that it germinates into a plant that has been genetically engineered to be highly tolerant of the broad spectrum herbicide "Roundup."  It's worth pointing out that Monsanto is the company that produces Roundup, so their stake in this is much more than protecting its patent rights on the seed itself.  The main ingredient of Roundup, glyphosphate, is no longer protected by Monsanto's patents, and other companies are now producing glyphosphate-based herbicides.  It's worth noting that just as people and companies were starting to look forward to Monsanto's patent running out (thus making price-cutting competition possible), we started hearing about glyphosphate resistance cropping up in weeds, thus undercutting the effectiveness of glyphosphate-based weed control.

That Bowman uses Roundup-Ready seed for his first crop is not in dispute, and he insists that he obeys the stipulations of the contract with Monsanto.  Monsanto, however, is up in arms with the results of his second planting, the one that Bowman gets by purchasing seed from the elevator.  That elevator-sourced seed is not marketed as Roundup Ready, it's just "commodity" seed, which could be anything.

My point is that Bowman didn't purchase his second planting seed from Monsanto.  He bought it from the grain elevator, which made no claims on its seed's resistance to herbicides, germination rate, or anything else.  The seed was ostensibly intended as animal feed, what Bowman did with it after purchasing was really up to him.

According to court documents, Bowman tested the seed and found it resistant to Roundup, so he planted it and used Roundup as a post-emergence herbicide.  That, by the way, is what is supposed to be so great about the seed.  You can use Roundup at any time with the crop, instead of only pre-emergence for before the crop sprouts.  Before Roundup Ready seed was developed, you had to stop using Roundup once your planting had broken cover.

So what Monsanto is charging here isn't breach of contract - the contract Bowman signed doesn't apply to this seed, since he didn't purchase it directly from Monsanto - but patent infringement, availing himself of the herbicide resistance bred into the plant by growing it from genetically modified seed.  The original farmer that produced the soybeans on his farm was compliant with the contract, and sold the seed in good faith to an end user.  And since we must assume that farmer didn't infringe on the patent by saving any seed from his crop, he's in the clear.  He grew the crop, he sold the crop, he's done.  That the crop is, by virtue of its parentage, resistant to herbicides is not his concern.

The seeds Bowman purchased are not stamped with the name Monsanto anywhere on them.  They don't grow a special color or only facing toward St. Louis, Missouri.  That Bowman tested the seeds and found them resistant isn't in dispute.  What's really being contested here is whether the patent protection of the seed should be exhausted.

I think Bowman has one small leg to stand on in that he had no way of knowing whether the seed he was purchasing was Roundup Ready.  The commodity seed he purchased was pulled from the grain elevator, not from any marked bins that had been filled by a specific individual.

At this point I have a question and I think the case could hinge on this: was Bowman required to assume the seed he purchased, being glyphosphate resistant, was "Roundup Ready" seed?  Since the existence of glyphosphate-resistant weeds and indeed even coca plants has been noted, it's clear that resistance to glyphosphate need not be only from Monsanto's genetic modification.  It could be wild, a sport mutation that has no bearing on Monsanto.

Granted this is a bit of a stretch, but it casts Monsanto's claim to patent infringement in some doubt, as the desirable trait can be had by other means than Monsanto's manipulation, and while Monsanto can easily bring to bear the technological tools and know-how to prove that the seed may indeed be the product of their GM product, Bowman cannot.  And that brings us back to how much due diligence can reasonably be expected of a farmer.

Also pertinent but not entirely related: when people have to pony up for more and bigger expenses to eradicate herbicide-resistant weeds, can they hit Monsanto with a class action suit for creating the attractive nuisance that is Roundup?  If they had stuck with mechanical weed control (pulling), the weeds wouldn't have developed the chemical resistance and Monsanto wouldn't have created the chemical-dependent weed control market.

Just a thought, probably specious.  But it bears asking.

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