Monsanto v. The American Farmer

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By: Max Bridges, Staff Member

On February 19, 2013, oral arguments were heard before the Supreme Court in a classic David and Goliath case, Bowman v. Monsanto, No. 11-796.[1] On one side, there's Vernon Hugh Bowman, a 75 year old farmer from southwestern Indiana, and the other, the agricultural giant, Monsanto.

In 1999, Vernon Hugh Bowman began purchasing Monsanto's patented Roundup Ready soybeans which have been genetically altered to resist the herbicide Roundup. As a condition of use, farmers must sign Monsanto's Technology Agreement which states that growers may only use the seed for a single season and may not sell the seeds to any other grower.[2] Bowman followed the terms of the agreement by not selling any of the seed from his main crop. However, beginning in 1999, he purchased second-generation seed from a grain elevator for his second planting and saved seeds from that purchase.[3] In 2007, Monsanto sued Bowman for violating their patent protection by purchasing the second generation GM seeds from the grain elevator.[4]

The Supreme Court only has to decide the very narrow issue of whether a patent right for self-replicating technologies expires after an authorized sale.[5] Bowman's attorneys have argued the doctrine of patent exhaustion should shield Bowman from liability. This doctrine states that the unconditioned sale of a patented article ends the patentee's monopoly right to control its use.[6] In other words, if you buy something covered by a patent you own it outright and are allowed to use it for your "ordinary pursuits of life."[7]

But Monsanto's David Snively says this argument misses the point. According to Snively, we can buy an iPhone and do whatever we want with it, "but we're not going to go out and make copies of the iPhone and put Apple out of business."[8] If farmers are allowed to plant the patented seeds (which creates copies of the patent) without paying Monsanto, the patents would be worthless.

SCOTUS is likely to agree with Monsanto. At a freewheeling and almost one-sided oral argument, the justices "seemed alert to the consequences of their eventual ruling not only for Monsanto's very lucrative soybean patents but also for modern agriculture generally and for areas as varied as vaccines, cell lines and software."[9]

Monsanto also has the case law in its favor. In 1980, the Supreme Court ruled by a 5-4 margin that living organisms could be patented,[10] and in 2001 the Court upheld the patenting of plants.[11] Finally, when suing farmers who save their seeds, Monsanto has never lost in court. Since 1997, Monsanto has filed 145 lawsuits against seed-saving farmers. Only 9 cases have gone to full trial (most settle) and Monsanto has been victorious each time.[12]

While I thoroughly believe businesses should be paid for their product and that patents encourage innovation, Bowman v. Monsanto offers the Court the perfect opportunity to determine a much broader issue: is Monsanto using patent enforcement to control their monopoly on a vital resource? The answer is yes. Monsanto's patented seeds account for 93% of the soybean industry and 80% of corn.[13] To no one's surprise, the cost of farming has drastically risen. Since the introduction of GM seed, "the average cost of soybean seed to plant one acre has risen by a dramatic 325 percent, from $13.32 to $56.58. Similar trends exist for corn and cotton seeds: cotton seeds spiked 516 percent from 1995 to 2011 and corn seed costs rose 259 percent over the same period."[14]

This monopoly stifles innovation and reduces seed diversity leaving our crops more vulnerable to "superweeds."[15] Twenty years ago it was common for dealers to sell inexpensive, "public" soybeans. Nowadays, almost all soybean seeds are patented. USDA economists have found that recent seed industry consolidation has reduced research and likely resulted in fewer crop varieties.[16]

Finally, Bowman v. Monsanto raises a more fundamental problem: why are we defending Goliath against David? America was founded on the backs of hard-working farmers and yet today, we are more willing to protect the immortal corporation. Do you remember the touching Super Bowl advertisement by Dodge that brought many parties to a sudden and abrupt halt?[17] It was so moving because it elucidated the sacrifices that American farmers, not corporations, have made to feed our nation. As Paul Harvey so eloquently said, "And on the eighth day, God looked down on his planned paradise and said I need a caretaker - so God made a farmer." I pray we don't forget this.
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[1] Bowman v. Monsanto, SCOTUS Blog, http://www.scotusblog.com/case-files/cases/bowman-v-monsanto-co/ (last visited March 4, 2013).
[2] Bowman v. Monsanto, OYEZ, http://www.oyez.org/cases/2010-2019/2012/2012_11_796#argument (last visited March 4, 2013).
[3] Id.
[4] Aviva Shen, How One 75-Year-Old Farmer Could Deal a Blow to Monsanto's Empire, Nation of Change (February 20, 2013), http://www.nationofchange.org/how-one-75-year-old-soybean-farmer-could-deal-blow-monsanto-s-empire-today-1361373405.
[5] OYEZ, supra note 2.
[6] Black's Law Dictionary, (9th ed. 2009).
[7] Dan Charles, Farmer's Fight with Monsanto Reaches the Supreme Court, NPR - The Salt (February 18, 2013), http://www.npr.org/blogs/thesalt/2013/02/18/171896311/farmers-fight-with-monsanto-reaches-the-supreme-court.
[8] Id.
[9] Adam Liptak, Supreme Court Appears to Defend Patent on Soybean, The New York Times (February 19, 2013), http://www.nytimes.com/2013/02/20/business/justices-signal-a-monsanto-edge-in-patent-case.html?_r=0.
[10] Diamond v. Chakrabarty, 447 U.S. 303 (1980).
[11] J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124 (2001).
[12] Why Does Monsanto Sue Farmers Who Save Seeds, Monsanto, http://www.monsanto.com/newsviews/Pages/why-does-monsanto-sue-farmers-who-save-seeds.aspx (last visited March 4, 2013).
[13] Peter Whoriskey, Monsanto's Dominance Draws Antitrust Inquiry, The Washington Post (November 29, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/11/28/AR2009112802471_pf.html.
[14] Seed Giants vs. U.S. Farmers, Center for Food Safety and Save our Seeds (2013), http://www.centerforfoodsafety.org/wp-content/uploads/2013/02/Seed-Giants_final.pdf, at 8-9.
[15] Aviva Shen, Superweed Lead to Heavier Pesticide Use on Crops, Think Progress (October 3, 2012), http://thinkprogress.org/health/2012/10/03/946801/superweeds-pesticides/?mobile=nc.
[16] Seed Giants vs. U.S. Farmers, supra note 14, at 9.
[17] Official Ram Trucks Super Bowl Commercial "Farmer," http://www.youtube.com/watch?v=AMpZ0TGjbWE (last visited March 4, 2013).

France to Keep Temporary Ban on Monsanto Corn

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By: Arthur Cook, Staff Member

As we have discussed before, concerns over everybody’s favorite shady conglomerate Monsanto continue to mount.  On Saturday, September 18, 2012, French Prime Minister Jean-Marc Ayrault announced the continuation of the temporary ban on MON810, a genetically-modified strain of corn.[1] This is not the first attempt by French officials to ban MON810. In 2008, France banned MON810 after protests against the modified corn.[2] However, a French court overturned the ban.[3] The French government then reversed the French court, instating a temporary ban on MON810, citing “environmental” concerns, and labeled the move a precautionary one.[4] Now, Prime Minister Ayrault indicates the ban will continue for some time. 

This ban is largely out-of-step with the rest of the world: the European Union continues to approve the use of MON810, even in the face of French concerns regarding the environment.[5] The United States permits utilization of MON810, as does the rest of North America.[6] France has had more than just this quibble with parent company Monsanto, however. France found Monsanto guilty of chemical poisoning stemming from a person who reported suffering neurological problems after inhaling one of Monsanto’s weedkillers.[7]

Whether or not this continuation of the ban results from new research linking MON810 to actual adverse effects on the environment, or this act is simply French officials responding to strong opposition to genetically-modified crops is not yet clear.[8] It should be noted, however, that MON810 is the only genetically-modified crop allowed in Europe at this time.[9]

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[1] Marion Douet, “France to maintain ban on GMO crops” Reuters (Sept. 15, 2012), http://www.reuters.com/article/2012/09/15/france-environment-gmo-idUSL5E8KF1OH20120915.

[2] Adam Vaughan, “French ban of Monsanto GM maize rejected by EU” The Guardian (May 22, 2012),  http://www.guardian.co.uk/environment/2012/may/22/french-ban-gm-maize-rejected.

[3] Id.

[4] “France bans strain of Monsanto GM maize” AFP (March 16, 2012) http://www.google.com/hostednews/afp/article/ALeqM5g35IMv82EiHUZTEBI7Yadp2y74CA.

[5] Vaughan, supra note 2.

[6] GM Crop Database, Center for Environmental Risk Assessment, accessible at: http://www.cera-gmc.org/?action=gm_crop_database&mode=ShowProd&data=mon810.

[7] Douet, supra note 1.

[8] Id.

[9] “France Says No to Genetically Modified Crops, No to Fracking” Common Dreams (Sept. 16, 2012), https://www.commondreams.org/headline/2012/09/16.

Think Twice Before Using Roundup on Your Garden This Summer

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By: Arthur Cook, Staff Member

Summer means family barbeques, celebrations surrounding flags, our fathers, and at least a dozen weddings.  Summer also means lawn care. Committing herbicide against the ever-encroaching weed terror sends many to their local lawn and garden centers. Glyphosate, the most widely used herbicide in the United States, is featured in many popular weed killing products like Roundup.[1] Roundup is particularly popular with farmers. Glyphosate is non-selective in that it kills all vegetation except genetically modified plants marketed as "Roundup Ready."[2] Roundup is manufactured by everybody's favorite shady conglomerate, Monsanto.[3]

What most people do not consider when purchasing and applying Roundup is the relationship between the Environmental Protection Agency (EPA) and their lawns. As you read this, the EPA is in the process of finishing its data-gathering for the first comprehensive review of Roundup in thirty years.[4] Some studies indicate levels of Glyphosate have risen in food sources over the last few years.[5]  This is particularly concerning because Glyphosate has low, but not the lowest, level of toxicity.[6]

Additionally, a surfactant non-active ingredient in Roundup, polyethoxylated tallowamine (POEA), has recently come under fire for posing greater dangers to humans than Glyphosate. In one study from the University of Caen, researchers determined the chemical was more deadly to human embryonic, placental, and umbilical cord cells than the herbicide itself. [7]  Additionally, POEA is not subject to EPA regulation.[8]

Some governments have already moved to curb the influence of Roundup. For example, the province of Ontario in Canada has a comprehensive ban on all non-essential weed killers, including Roundup.[9] Ontario defines "non-essential" as uses for purposes that include a concern for public safety.[10] Other locales, such as Boulder, Colorado, have entirely moved away from using Roundup in public places.[11] As the EPA concludes its study, the effects of Roundup will be more closely scrutinized for the potential for danger to humans. In the meantime, consider pulling those pesky weeds yourself.

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[1] Glpyhosate Technical Fact Sheet,  National Pesticide Information, http://water.epa.gov/drink/contaminants/basicinformation/historical/upload/Archived-Technical-Fact-Sheet-on-Glyphosate.pdf.

[2] Herbicide Tolerance and GM Crops, Greenpeace International,  (June 30, 2011), http://www.greenpeace.org/international/en/publications/reports/Herbicide-tolerance-and-GM-crops/.

[3] Id.

[4] Carey Gillam, Cancer Cause or Crop Aid? Herbicide Faces Big Test, Reuters,  (Apr. 8, 2011, 12:14 PM), http://www.reuters.com/article/2011/04/08/us-glyphosate-epa-idUSTRE7374WX20110408..

[5] Agronomic and Enviromental Impacts of the Commercial Cultivation of Glpyhosate Tolerant Soybean in the USA, Centrum Voor Landbouw en Milieu, http://www.sbcbiotech.nl/page/downloads/Agronomic_and_environmental_impacts_GT_soybean_SBC___CLM_July_2001.pdf.

[6] R.E.D. FACTS: Glyphosate, EPA, http://www.epa.gov/oppsrrd1/REDs/factsheets/0178fact.pdf.

[7] Crystal Gammon and Environmental Health News, Weed-Whacking Herbicide Proves Deadly to Human Cells, Scientific American, (June 23, 2009), http://www.scientificamerican.com/article.cfm?id=weed-whacking-herbicide-p.

[8] Id.

[9] Mary Agnes Welch, Province's Chemical Dependency, Winnipeg Free Press, (May 22, 2012), (http://www.winnipegfreepress.com/local/provinces-chemical-dependency-152469985.html.

[10] Id.

[11] Heather Urie, Boulder City Manager Pulls Roundup Weedkiller in Public Places, Daily Camera, (May 1, 2011), http://www.dailycamera.com/ci_17960073.

Challenging the GMO Giants: OSGATA v. Monsanto Co.

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By: Kelly Calder, Staff Member

Transgenic crops[1] have been a point of contention since their introduction, spurring lawsuits, boycotts, and leading numerous groups to publically advocate mandatory labeling of transgenic foods.[2] On March 29, 2011, the Organic Seed Growers and Trade Association (“OSGATA”), spearheaded a lawsuit in the Southern District of New York against transgenic seed giant Monsanto, Inc.[3] OSGATA, along with eighty-two other plaintiffs,[4] have sought a declaratory judgment to prevent Monsanto from bringing suit against them for patent infringement for inadvertently utilizing transgenic seeds.[5] Additionally, the plaintiffs are asking the court to declare that Monsanto’s numerous seed patents are invalid.[6]

It remains to be seen whether the plaintiffs will ever get to argue the merits of the case.[7] Monsanto filed a motion to dismiss in mid-July of last year, stating that the plaintiffs lacked subject matter jurisdiction to maintain their action.[8] The plaintiffs filed a brief in opposition to the motion,[9] which was accompanied by an amici brief further supporting the plaintiffs’ position.[10] Oral argument on the issue was granted, and the case was heard January 31, 2012.[11] As of the time of this post, a decision has not been reached.[12]

The OSGATA plaintiffs, who are mostly organic farmers, should be able to satisfy the relevant criteria for maintaining a declaratory judgment action. The threat of cross-contamination between transgenic and non-transgenic crops is a very real one for farmers. This was acknowledged by the United States Supreme Court in Monsanto Co. v. Geertson Seed Farms.[13] According to the OSGATA complaint, “if an organic farmer wants to determine whether Monsanto’s patented gene is present in her crop, she must conduct genetic testing, which can be extremely expensive.”[14]

The actions that farmers have to take in order to ensure the purity of their crops increases the costs of operation, and due to the fact that Monsanto has sued several farmers for patent infringement, can influence the types of crops that farmers choose to grow, e.g. causing them to be averse to growing crops that may subject them to liability for patent infringement.[15] The fact that the plaintiffs have taken steps to prevent contamination in order to prevent a Monsanto-initiated lawsuit should do nothing to inhibit their cause of action.[16] Additionally, success at this stage could encourage similar suits and would present vehicle for challenging Monsanto’s patents in cases that could ultimately reach the Supreme Court.