SANDBORN – 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 of land passed down from his father. Bowman rested in a recliner, boots off, the tag that once held his Foster Grant reading glasses to a drugstore rack still attached, a Monsanto cap perched ironically 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 battle, now at the 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 grain from the local elevator, which is usually used for feed, and plant it. But that grain was mostly progeny of Monsanto’s Roundup Ready beans because that’s what most Indiana soybean farmers grow. Those soybeans are genetically modified to survive the weedkiller Roundup, and Monsanto claims that Bowman’s planting violated the company’s restrictions.
Those supporting Bowman hope the court uses the case, which is scheduled for oral arguments this month, to hit the reset button on corporate domination of agribusiness and what they call Monsanto’s “legal assault” on farmers who don’t toe the line. Monsanto’s supporters 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 soybean seeds, 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 states.
Bowman said Monsanto’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,” Bowman said.
Roundup Ready
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 Bowman’s six-page statement of events.
The journey from Sandborn to the Supreme Court is a trip through modern American agribusiness and patent law, an increasing part of the court’s docket but a complex area of law that even the justices approach with some trepidation.
At issue is Monsanto’s ubiquitous weedkiller, Roundup, which has revolutionized American farming. “Weeds are the most significant economic challenge to global food production,” says a brief by the American Soybean Association, which supports Monsanto in the case.
They compete with crops for water, nutrients and light, and Roundup has been especially effective in combating them. The herbicide’s active ingredient, glyphosate, kills almost everything. Including conventional soybeans.
So Monsanto in 1996 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 were Roundup Ready.
Farmers who buy seeds with the Roundup Ready trait sign an agreement that says 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, like those that are the most prominent feature on the flat landscape in Bowman’s corner of southern Indiana.
From 1999 to 2007, Bowman bought Roundup Ready seeds for his first planting of soybeans and abided by Monsanto’s restrictions. But like some other 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 instead he purchased cheaper commodity grain from the local elevator, which is usually used for feed. He planted it, and when he sprayed the crop with the herbicide, almost all survived. That wasn’t 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 when Bowman ignored its warnings and won a judgment of nearly $85,000.
Bowman argued that under long-standing legal precedent, Monsanto’s patent claims ended – were “exhausted” is the legal term – when Bowman purchased the Roundup Ready seed.
But the specialized court that hears patent cases, the U.S. Court of Appeals for the Federal Circuit, disagreed and said Monsanto could put restrictions on farmers’ use of progeny beans.
Moreover, the judges said even if Monsanto’s patent had been exhausted by the original sale, Bowman was creating copies of the company’s technology.
