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The Supreme Court ruled unanimously today that farmers who use patented seed for more than one planting, in violation of their licensing agreement, are liable for damages. Billed as David versus Goliath, the case pitted an Indiana farmer against the agribusiness behemoth Monsanto Company. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Almost all the soybean farmers in the U.S. use seed that is genetically altered to be resistant to weed killer like Roundup. That allows farmers to spray for weeds without killing the soybeans. But the patented seed is three times more expensive than regular seed, and so some farmers have tried to use regenerated seed to save money. Case in point, 75-year-old farmer Hugh Bowman, who regularly bought Monsanto's Roundup-resistant soybean seed for his first growth and signed a licensing agreement promising to use all the seed and not to use any regenerated seed for future use. But Bowman also had other riskier low-yield plantings, and for those...
HUGH BOWMAN: What I wanted was a cheap source of seed.
TOTENBERG: So he went to the local grain elevator where farmers drop off their harvested soybeans, and he bought and planted some of those, knowing that those beans would likely also be Roundup-resistant. He eventually produced eight separate crop yields using the second and third generations of the grain elevator seed, and he was quite open about what he was doing.
BOWMAN: I couldn't imagine that they'd give a rat's behind.
TOTENBERG: But they, Monsanto, did. The company sued Bowman as it has sued other farmers. Bowman lost in the lower courts and was ordered to pay $84,000 in damages to Monsanto. He appealed all the way to the U.S. Supreme Court. There, the question before the justices counter-posed two legal doctrines against each other. One doctrine, known technically as patent exhaustion, says that once you buy a product, say, a cellphone, you can do with it whatever you want. You can use it, sell it, give it to your kids, whatever. But a second patent doctrine says you are forbidden to copy it. So which rule applied to Bowman's case?
Today, the Supreme Court said unanimously that Bowman's actions amounted to illegal copying of a patented product. Writing for the court, Justice Elena Kagan said that Bowman is perfectly free to purchase grain elevator beans to eat or feed livestock, or even to resell, but he could not do what he in fact did: plant the beans from the grain elevator in his own fields, test them for resistance, and then harvest, reharvest and reharvest without paying Monsanto for use of their patented product. Without this protection for Monsanto, said Kagan, the company would get scant benefit from its invention and Bowman and other farmers would reap great rewards from the resistant seed without paying for it.
ANDREW KIMBRELL: It's a disaster for farmers.
TOTENBERG: Andrew Kimbrell, director of the Center for Food safety.
KIMBRELL: It has huge implications for farmers, not only because they can be prosecuted as hundreds have been, but also that because of the monopoly that Monsanto has, we've seen prices, soy prices, for example, have risen 325 percent since this technology came on board.
TOTENBERG: The court's decision, however, was explicitly limited to cases like Bowman's where an individual takes steps to replicate a patented product. Justice Kagan said the court was not deciding how to handle all self-replicating products, products that range from patented DNA molecules to computer software. We need not address here, she said, whether or how patent doctrines would apply in many self-replicating inventions that are becoming ever more prevalent, complex and diverse. Nina Totenberg, NPR News, Washington.
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