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“Inch By Inch, Row By Row”: Where Mother Nature Meets Aggressive Litigation

641720_f260Mother nature ain’t got nothing on Monsanto.  Monsanto, an agricultural biotech mega-corporation with seemingly insurmountable political muscle, holds a virtual stranglehold  on the U.S. food supply (including 90% of the GMO – genetically modified organism/food market).  The corporation is ostensibly pro-farmer, if you look at the slogans and sunny wholesome photography on its website – however, it has also waged a massive legal war on these same farmers.  Monsanto is reported to have filed nearly 150 patent infringement lawsuits against farmers and settled out of court with seven hundred more.  Monsanto holds patents on genetically modified seeds, which have been altered to address many of the difficulties in growing them, and it makes a tidy profit selling these seeds. The thing about seeds is, of course, that when they grow successfully, they produce more seeds, and Monsanto cannot control  at least this aspect of the natural order (without making a useless product).   Unable to wrest control of the natural order, they have turned to the next best thing – the U.S. judicial system.

There are (at least) three ways that unsuspecting farmers can find themselves dragged into federal court to defend a patent infringement lawsuit against Monsanto’s army of lawyers.  In the words of Paulie Cicero: Plant a crop with Monsanto seed, save the seeds from the new crop and plant those next year? “Fuck you, pay me.”  Monsanto seeds scattered onto your fields from a neighboring farm?  “Fuck you, pay me.”  Try to plant the second-hand seeds you bought from a grain elevator?  “Fuck you, pay me.”

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Of course, to carry out this sort of litigation strategy, one must keep a watchful eye on potential plaintiffs (farmers).  Vanity Fair has reported that:

As interviews and reams of court documents reveal, Monsanto relies on a shadowy army of private investigators and agents in the American heartland to strike fear into farm country. They fan out into fields and farm towns, where they secretly videotape and photograph farmers, store owners, and co-ops; infiltrate community meetings; and gather information from informants about farming activities.

Which brings me to the subject du jour which is not, as one might expect, a rant against Monsanto’s aggressive business practices, but rather a brief recap of recent relevant events in the legal world.

Vernon Bowman is a soybean farmer and a good customer of Monsanto.  He bought Monsanto’s “Roundup Ready” soybean seeds to plant his primary soybean crop. “Roundup Ready” seeds have been genetically modified to be resistant to the herbicide/weed-killer “Roundup,” and Monsanto holds patents on them.  Needing seeds for a secondary, lower-yield soybean planting, Bowman bought less-expensive “commodity” seeds from a grain elevator.  These seeds were a combination of seeds from various farmers, which also contained “Roundup Ready” seeds.  After Bowman planted these seeds, he was sued by Monsanto for its infringing its patents because he planted “Roundup Ready” seeds that he did not buy from Monsanto.  His case wound its way through the federal court system, and ended up before the Supreme Court, which handed down its decision on May 13, 2013 (Bowman v. Monsanto Co.).

imagesThe central issue in the case concerned the doctrine of “patent exhaustion,” which generally protects an authorized purchaser from a claim of infringing a patent by using or reselling the product.  If Albert holds a patent on Product X and sells it to Bob,  his exclusive right to control the use or sale of the patent is exhausted upon the sale, and Bob may then legally use or resell Product X.  Bowman argued that the right to “use” the seed included the right to plant the seed as well as its progeny, since that is how seeds are “used.”  The Supreme Court unanimously disagreed, holding essentially that a farmer may plant seeds he buys directly, but may not plant any subsequent newly grown seeds.

This result vindicates Monsanto’s legal stance and puts farmers back into the position they were in before the decision, which is to say not a great one, where they are constantly under suspicion/investigation and at risk of being hauled into federal court based on circumstances they may not even be aware of.  The Court’s decision  seems to result, at least in part, from its concern that if patent exhaustion applied, Monsanto would lose significant ground to the secondary seed market and lose its incentive to innovate.

A skeptic could conclude that Monsanto has adopted a business strategy of destroying (or threatening to destroy) the livelihood of many of America’s farmers to strengthen its monopoly by killing off the secondary market for its seeds.  Monsanto would doubtless reply that the number of farmers affected is extremely small, and that on balance, they do a lot more good for farmers than harm.  Monsanto’s lawsuits will doubtless continue.  One can only hope that measures will be taken to account for situations where farmers end up with patented seeds growing on their land through no fault of their own (e.g., through contamination from nearby fields).