With his mere 300 acres of soybeans, corn and wheat, Vernon Hugh Bowman said, “I’m not even big enough to be called a farmer.”
Yet the 75-year-old farmer from southwestern Indiana will face off Tuesday against the world’s largest seed company, Monsanto, in a Supreme Court case that could deal a huge blow to the future of genetically modified crops, and also affect other fields from medical research to software.
At stake in Mr. Bowman’s case is whether patents on seeds — or other things that can self-replicate – extend beyond the first generation of the products.
It is one of two cases before the Supreme Court related to the patenting of living organisms, a practice that has helped give rise to the biotechnology industry but which critics have long considered immoral. The other case, involving a breast cancer risk test from Myriad Genetics, will determine whether human genes can be patented. It is scheduled to be heard on April 15.
Monsanto says that a victory for Mr. Bowman would allow farmers to essentially save seeds from one year’s crop to plant the next year, eviscerating patent protection. In Indiana, it says, a single acre of soybeans can produce enough seeds to plant 26 acres the next year.
Such a ruling would “devastate innovation in biotechnology,” the company wrote in its brief. “Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.”
The decision might also apply to live vaccines, cells lines and DNA used for research or medical treatment, and some types of nanotechnology.
Many organizations have filed friend-of-the court briefs in support of Monsanto’s position — universities worried about incentives for research, makers of laboratory instruments, and some big farmer groups like the American Soybean Association, which say seed patents have spurred crop improvements. The Department of Justice is also supporting Monsanto’s argument.
BSA/The Software Alliance, which represents companies like Apple and Microsoft, said in a brief that a decision against Monsanto might “facilitate software piracy on a broad scale” because software can be easily replicated. But it also said that a decision that goes too far the other way could make nuisance software patent infringement lawsuits too easy to file.
Some critics of biotechnology say that a victory for Mr. Bowman could weaken what they see as a stranglehold that Monsanto and some other big biotech companies have over farmers, which they say has led to rising seed prices and the lack of high-yielding varieties that are not genetically engineered.
Patents have “given seed companies enormous power, and it’s come at the detriment of farmers,” said Bill Freese, science policy analyst for the Center for Food Safety, which co-authored a brief on the side of Mr. Bowman. “Seed-saving would act as a much needed restraint on skyrocketing biotech seed prices.”
Farmers who plant seeds with Monsanto’s technology must sign an agreement not to save the seeds, which means they must buy new seeds every year.
Monsanto has a reputation for vigorously protecting its intellectual property.
The Center for Food Safety, which has tracked the cases, said Monsanto has filed more than 140 patent infringement lawsuits involving 410 farmers and 56 small farm businesses, and has so far received $23.5 million in recorded judgments. The organization says there are numerous other cases in which farmers settle out of court or before a suit is filed.
Monsanto says it must stop infringers to be fair to the vast majority of farmers who do pay to use its technology.
But Monsanto typically exercises no control over soybeans or corn once farmers sell their harvested crops to grain elevators, which in turn sell them for animal feed, food processing or industrial use.
