U.S. ag wary as Monsanto heads to Supreme Court
The case also is important to regenerative medicine that relies on stem cell technologies. A stem cell by definition is a cell that can self-replicate, thus the case may answer the question of whether a patentee can control progeny of a patented stem cell, according to Antoinette Konski, a partner with Foley & Lardner's intellectual property practice group.
Monsanto, a $13 billion behemoth in agricultural seed and chemical sales, also sees the case as much bigger than itself.
"This case really centers on the question of twenty-first century technology such as what we bring in agriculture and other companies bring for say stem cell research or nanotechnology.... and how they're going to be handled under principles of intellectual property law," said Monsanto general counsel Dave Snively.
Because seeds self-replicate, creating progeny when planted, they are unlike more traditional patented products. Using a computer or smartphone does not create more computers or phones. But using a seed can make new seeds.
For generations all around the world, farmers have practiced the art of saving seed, holding onto some of the grain they harvest each season to plant in a subsequent season. The advent of patented biotech seeds has changed that as Monsanto and rival seed developers barred farmers from seed saving, arguing that if farmers do not buy new seed each year the companies cannot recoup the millions they spend to develop the specialty seeds.
Transgenic crops, which splices genes from other species into plant DNA, have given farmers crops that resist insects and tolerate treatments of herbicide, making killing weeds easier for farmers. The majority of U.S. corn and soybean acres are now planted with patented biotech seeds.
The case before the Supreme Court traces its roots to 1999, when Bowman decided to plant a "second crop" of soybeans after he harvested winter wheat from the farmstead he runs near Sandborn, Indiana.
While he used Monsanto's Roundup Ready engineered seeds for his main, or "first" crop, Bowman said he decided to use inexpensive commodity grain that he could purchase from a local grain elevator for his "second" planting of soybeans in late June. Yields are generally lower for late-planted soybeans because conditions tend to be more optimal in April and May.
The mixture of grain Bowman bought, which he dubbed "junk," carried no patent technology agreement and no directive prohibiting seed saving as do the bagged and branded soybean seeds sold by Monsanto and other seed companies.