So Monsanto in 1996 offered a genetically modified soybean that was resistent to glyphosate, and despite alarm from some who oppose such engineering, it has been wildly successful. Through Monsanto’s own seeds and by its licensing of 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 purchased Roundup Ready seeds for his first planting of soybeans and abided by Monsanto’s restrictions. But like some 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, winning 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 — once 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 that even if Monsanto’s patent was exhausted by the original sale, Bowman was creating copies of the company’s technology.
“While farmers, like Bowman, may have the right to use commodity seeds as feed . . . they cannot ‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants,” the court ruled.