Monsanto's Supreme Court Seed Fight: What Would Woody Guthrie Think?
by Andrew Cohen, 2013-02-19
"A farmer is good. It's as good a job as a man can do."
It is a blessing upon this nation that Woody Guthrie's voice, the relentless voice of the poor and the powerless, is heard anew this winter in the form of a powerful book, a newly-discovered novel titled House of Earth. Edited and with an extensive introduction by Douglas Brinkley and Johnny Depp, Guthrie's book, written in 1947, searingly portrays the joy and sorrow of a poor farming couple living through the Dust Bowl during the Depression. And when I read it last week it naturally made me think immediately of the United States Supreme Court.
On Tuesday morning, the justices will hear oral argument in a fascinating case that would very much have interested Guthrie were he alive today. The case is styled Bowman v. Monsanto and, technically, it's a conflict over seed-planning and federal patent law. It's a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds.
Bowman v. Monsanto also touches upon many of the ancient themes and struggles that animated Guthrie's life and times: the little guy against big business, the small farmer against the agricultural conglomerate; the man of the land versus the agents of commerce. This is the story of who gets the reap the benefits of the good earth. Even Guthrie wouldn't have imagined the legal, economic or bio-ethical ramifications here. But House of Earth and Bowman, coming at the same time, remind us that some conflicts in America are eternal.
SEEDS OF DOUBT
A farmer is good. It's as good a job as a man can do. Good as any man or any woman in the whole world can do. It's good because it's good and a man can be good. He can do good and he can feel like he's doing some good. And a farmer. Well, a farmer is good.
--Guthrie, House of Earth
Vernon Bowman is a 75-year-old Indiana farmer who, in 1999, came up with a bright idea to save himself a little money. He planted two crops of his soybeans on his small 300-acre farm. For the first crop, he would buy and plant a genetically-engineered brand of soybean seed--a seed especially resistant to herbicides--from one of Monsanto's licensed seed producers. The deal required Bowman to sign a contract promising not to save any of the seeds from his first-crop harvest. Bowman signed the agreement in 2002 and says he's lived up to it.
When it came time to plant his second crop of soybeans in 2000--a more risky crop because of the weather and other mercurial factors--Bowman decided to do something different, something he says local farmers had done for generations. He bought what are called "commodity seeds" from a grain elevator. Because those seeds were made of different mixtures and came from different farmers, they were cheaper. Thanks to genetic modification, and patents like Monsanto's, they were also largely resistant to herbicides.
"Mr. Bowman repeated this activity from 2000 through 2007," the court record reflects. "Unlike his first crop, [he] saved the seed harvested from his second-crop for replanting additional second-crops in later years. He also supplemented his second-crop planting supply with periodic additional purchases of commodity seed from the grain elevator." It was a good plan--until the folks at Monsanto figured out that Bowman was growing more soybeans than his authorized purchases would allow. In 2007, the giant company sued the small-time farmer.
THE PLAYING FIELD
Ella May saw long new furrows of good plowed ground and her nose smelled the roots, the syrups, the saps, the juices, not only of the ground but, too, of popping seeds with big white roots, drying stems and stalks and leaves with roots as hard as her fingernails.
--Guthrie, House of Earth
Monsanto naturally didn't get to be so big and powerful by being kind and forgiving--and farmer Bowman isn't its first target. According to the Center for Food Safety, which last week issued a new report titled Seed Giants vs U.S. Farmers, the mega company had "filed 144 lawsuits involving 410 farmers and 56 small farm businesses in at least 27 different states" as of January. The company had recouped tens of millions of dollars as a result of these enforcement lawsuits--as well as settlements with farmers brought about by the mere threat of litigation.
As you'll see below, Monsanto says it is merely enforcing valid contracts, and protecting its hard-fought patents, and that it has a right to do so aggressively. However, the result of these attempts at market control, the CFS noted, is "dramatic increases in the price of seeds. From 1995-2011, the average cost to plant one acre of soybeans has risen 325 percent; for cotton prices spiked 516 percent and corn seed prices are up by 259 percent." The reason for this development is not difficult to discern. From the CFS Report (footnotes omitted):
In the last few decades, the U.S. has led a radical shift toward commercialization, consolidation, and control of seed ownership. Three agrichemical firms--Monsanto, DuPont, and Syngenta--now control 53 percent of the global commercial seed market. The top ten seed firms, with a majority stake owned by U.S. corporations, account for 73 percent. This shift has fundamentally changed farming in the U.S. Instead of continuing the historical tradition of farmers having full access to seeds that they have cultivated over centuries, agrichemical corporations now own the sine qua non of farming--indeed, the irreplaceable element of all food--seeds.
Many legal observers were surprised when the Supreme Court chose to take this case. Both of the lower courts had sided definitively with Monsanto. "While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use," the Federal Circuit Court ruled unanimously, "they cannot 'replicate' Monsanto's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.
Could the justices rescue Bowman, or at least limit the damage for dogged farmers like him?
But then you take a farm that messes around and gets in debt to some outfit, and then he hits a hard row or two, and some rough and rocky country, or bad winds, or hot times, or dry spells, or washouts, floods, cloudbursts, or like that, and he loses what he's got a hold of. And then, well, then he falls down...
--Guthrie, House of Earth
There are many legal complexities to this case but Monsanto, in the end, makes a rather simple argument in defense of its seed patents. The company spent an awful lot of time and money to genetically create a soybean seed that would be resistant to herbicides, argue former Solicitor General Seth Waxman and the company's other lawyers, and the law should protect that investment. Because of the nature of the seeds, because of their replicative effect, patent protection must extend beyond "first generation" sales. From the merits brief:
A single soybean seed can produce a plant containing as many as 80 soybeans, each of which can be harvested, cleaned, and planted to create new glyphosate-tolerant soybeans--virtually ad infinitum. Were Monsanto unable to restrict this type of exponential reproduction, its ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the world.
The essence of Monsanto's argument reads rather like a philosophy exam question. The company's patent over its soybeans seeds was not "exhausted" after Bowman planted the seeds the first time. And it was not "exhausted" when he bought and then planted the second-crop seeds from the grain elevator. Instead, the company argues, Bowman's planting of each new generation of the seeds, from whatever source, constituted a brand new event triggering the initial patent protections. From the brief:
...[T]he patent exhaustion doctrine never grants the purchaser the right to "make" new copies of the invention, as petitioner did when he cultivated new crops of soybeans embodying the invention. Although petitioner argues that growing crops does not constitute a "making," nothing in the Patent Act suggests Congress intended that term to have anything other than its ordinary meaning which compasses the production of new crops by farming.
Monsanto also makes the "parade of horribles" argument that always seems to grace the briefs of patent holders. "Accepting petitioners position," the lawyers argue, "would devastate innovation in biotechnology, which entails 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." This is a case, the company wants to remind the justices, with a ton of money at stake.
VERNON HUGH BOWMAN'S CASE
... to them, inside them, in their hearts this was a sorrowful season, an old and a dry season, a season of good-bye and parting, a season when all the things of the plains, the twigs, grasses, hays, flowers, stalks, and the shucks, the things grown of the earth, take leave without further crying, and blow away somewhere to be whipped apart, to be parted and parted again.
--Guthrie, House of Earth
Bowman, too, makes an argument that has the logic on its side. His lawyers contend that the Federal Circuit Court of Appeals improperly broadened Monsanto's patent, and improperly failed to recognize the "exhaustion" exception in patent law, when it ruled against the farmer "that a seed 'substantially embodies' all later generation seeds, at least with respect to the commodity seeds, because nothing in the record indicates that the 'only reasonable and intended use' of commodity seeds is for replanting them to create new seeds."
Bowman himself wasn't taking Monsanto's genetically-engineered seeds and "making" a new invention that the company had protected by patent. Instead, the farmer's lawyers argue, it was "the planted soybean, not Bowman, that 'physically connected' all elements of the claimed invention into an 'operable whole." In other words, the true act upon which Monsanto complains is an act of nature, the essence of a seed placed into the ground, for which the farmer should not be punished or persecuted as a matter of federal patent law.
Moreover, Bowman's lawyers argue in their brief, Congress did not intend for such an exception to apply to seeds and Monsanto will still have strong protection for its seeds by virtue of the contracts the company imposes upon farmers. If Monsanto wants to stop farmers from doing what Bowman has done, the lawyers argue, the company can contract directly with grain elevator operators in the manner in which it now contracts with individual farmers. The sky won't fall, in other words, if the company loses control of its seeds once it sells them.
THE SUPREME COURT
Jobs to do at the same time every day. Rocks carried and thrown into mudholes. Wire fences patched up and put back together again. Windbreaks for the animals. Fences to stop stickery weeds and fences to cause the snow to drift away from the livestock. The going. The coming.
--Guthrie, House of Earth
You can tell how significant this case is by the tone of some of the "friends-of-the-court" briefs. For example: "If the sale of a single soybean incorporating these varied technologies exhausts all of the patent rights that are 'embodied' in the seed's DNA," warn lawyers for the American Intellectual Property Law Association, "competitors could be free to excise the patented, genetically engineered sequences and use them in other products, in derogation of the patent owners' rights in inventions having much broader uses and applications."
Some economists also have chimed in, almost literally with this sky-is-falling warning: "At stake in this case is the continuing viability of agricultural innovation, which is indispensable to the feeding of the burgeoning world population." And so have the conservatives, the liberty-minded advocates who argue in their brief that farmers like Bowman, who have "experienced tremendous advantages in seed technology in recent years," ought to be thankful for the research and development expenditures of companies like Monsanto.
Even the federal government is aligned against the small farmer here. Under established law, the Justice Department argues, Bowman was properly held liable for patent infringement because he did make "new patentable articles" when he used the "progeny seeds." If the feds are right, the question for the justices is whether they want to change that "established law." Yes sir, win or lose, Woody Guthrie would have loved this case, loved Bowman's fight, and loved to catcall the dire predictions of the wealthy and the powerful.
I saw how my finger puts a seed down in the ground and I saw how that was hitched up, or tied up somehow, with a lady at a desk somewhere, a family packing tobacco into a barn, men riding on a ship somewhere. I saw exactly how their work traced back to me and mine to them.
--Woody Guthrie, House of Earth
This piece first appeared in theatlantic.com