Editors' Notebook

The Curious Case of Vernon Bowman

Greg D Horstmeier
By  Greg D Horstmeier , DTN Editor-in-Chief
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A lot of folks inside and outside of agriculture are waiting for the outcome of the Supreme Court case involving Indiana farmer Vernon Bowman and Monsanto. For details on issues around that case, see our continuing coverage of the case by Ag Policy Editor Chris Clayton and Reporter Todd Neeley.

To give a quick recap, though, Bowman says he purchased soybeans from a local elevator and planted them on double crop acres after wheat in an effort to cut costs on the risky crop.

Bowman's claim, which failed in both lower court hearings, was that by buying bulk beans from the elevator, his actions fall under the doctrine of "patent exhaustion," which in essence allows use of a patented product without falling under its patent rules once that product is past its first point of sale. Monsanto has long-claimed that its patent on Roundup Ready seeds, and the growers agreement it makes farmers sign, makes any harvested seed illegal to plant, regardless of where it came from.

It could be some time before the court hands down a verdict in the Bowman case. If you follow the court at all over time, you've learned to be cautious reading anything in to which direction the ruling may go based on the questions justices ask. Just because they pepper one side with questions is not always a sign they will rule in favor of the other.

But as Clayton reported Tuesday, there were plenty of tough questions for Bowman's attorney Mark Walters. Most centered on why defendant Bowman thought he could do what he did, and pointing out that "patent exhaustion" theories shouldn't apply to "self replicating" technologies such as seeds and nanotechnology items.

I wonder, regardless of the court's ruling, if this case will finally bring closure to the decades-old question of "just how much can I get away with" when it comes to saving back Roundup Ready or any other seed that contains a patented trait. Because since the dawn of patented seeds, a handful of risk takers and rebels have been trying just that, to get away with something.

As much as anti-corporate groups, and some media outlets, like to hang on the "David vs. Goliath" storyline in these lawsuits, let's face it, in this arena the stone-in-the-slingshot crowd have not been doing well.

The latest accounting of the price of seed saving, produced by the anti-seed patent and anti-agribusiness group the Center for Food Safety, shows the results of tossing rocks at the seed giants. In their report, "Seed Giants vs. U.S. Farmers," CFS notes that Monsanto alone has begun 144 lawsuits involving 410 farmers and 56 small farm businesses across 27 states. The report says by the end of 2012 the company has received more than $23.5 million in judgments and settlements in those lawsuits.

Now the CFS foists these numbers to prove the evilness of the seed companies for persecuting hard-working farmers. Others might note that this tally is simply proof that breaking the law, or at least this law, truly doesn't pay. Why anyone would want to challenge that record -- only a few times to my knowledge has Monsanto backed down or not obtained either a judgment or settlement due to lack of evidence -- is beyond me.

What about those defendants who claim ignorance of the law? Unless you just dropped out of the sky, it's been pretty clear since 1997 that seed companies are taking their patent rights very seriously. And if you're spraying glyphosate over a crop canopy, whether you saved seed or are claiming "pollen pollution," you know you're using someone's patented trait to keep from killing those beans.

At least Bowman has had the guts to admit he knew what he was doing, he just believes farmers should be allowed to do it. He was even so bold as to tell reporters at a recent press conference that he did so "for five or seven years before Monsanto got ahold of me." There have been previous arguments made to come up with a way to allow saving back seed to lower the costs on risky plantings, such as in the double-crop situation. Seed companies have countered that they would rather refund seed costs of a failed crop vs. starting a tough-to-police secondary market for saved seed.

What is odd, and perhaps unfortunate is the better word, to me at least is in the Bowman case our protagonist has allowed himself to become the darling of an activist, agri-phobe organization such as the CFS. Their arguments around patented seeds have little to do with law, and mostly to do with some sense of social morality. They fear corporate size and power. They worry patented seeds will lead to starvation among the impoverished. They raise environmental and health fears of the genetic modification that are part and parcel of these seeds.

What is missing in this little public relations drama, though, is real drama. Where are the tractorcades of angry Midwestern grain farmers who feel they're under the thumb of corporate tyranny? Where are the blockades of F250 and 3500 pickups, the dumping of seed bags on the steps of Washington or even St. Louis?

Even Bowman has repeatedly claimed he recognizes the value of Roundup Ready seeds; that he legally buys them for full-season crops. Apparently, he saw value enough to risk punishment for breaking the law. But in his effort to get around that law, he's found it necessary to side up with a group who would just as soon take those seed choices away from him.

Email: greg.horstmeier@telventdtn.com

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Ric Ohge
2/25/2013 | 10:23 AM CST
Today in TechDirt Daily, was the report of this riposte, which, in a warped way sum's up many things other than why ex-Monsanto Attorney Clarence Thomas hasn't recused himself: "Upon hearing the news that the Supreme Court is taking on an important Monsanto patent case to do with the selling and re-planting of second generation seeds, Beech delivered our second funniest comment of the week by donning the hat of a sarcastic lawyer: The ultimate defense here is to say (rightfully) that the farmer didn't violate the patent, the plants did. The plant's DNA was protected by patent(s) and yet, in spite of that fact the plants continued to make millions of copies of their own genes through (1) growing (cellular division) and (2) by reproducing. All the farmer did was put a bunch of seeds in some dirt, he should have been able to assume that the patented bunch of seeds would readily respect the "natural right" of a patent holder's monopoly and simply not grown. Greedy freetard/pirate plants!!!!"