Opinion: Could recent Supreme Court verdict open door for new case on seed reuse?

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Dave Dickey

Perfection is a standard that is hard to achieve.

In 140 seasons of major league baseball, for example, there have only been 23 perfect games.

If you are a Christian, of course you will point to Jesus Christ.

In our own lives, we might have memories of something that was perfect – a particular sunset, a special vacation, a wedding … well, you get the idea.

So it’s something of a stunner to say that Monsanto has a perfect record in litigating cases against farmers who try to reuse their seeds.

Since 1997, Monsanto has filed 147 cases against farmers who have improperly reused their patented seeds.  Of that number 138 cases were settled in Monsanto’s favor before going to trial.  Monsanto won the other nine cases in court.  Final tally:  Monsanto 147 – Farmers 0.  Perfect.

Monsanto defends its seed patents essentially in two ways.

Farmers who buy the companies’ seeds must sign a contract prohibiting the reuse of seeds for a second crop.  And it takes to court farmers who use its seed without a signed contract as patent violators.

One case even reached the U.S. Supreme Court.  In the 2013 case Bowman v Monsanto Company, the Supreme Court ruled unanimously (perfect again) that Indiana farmer Vernon Bowman infringed on Monsanto’s patent when he planted saved soybean seeds without a license.

Bowman thought he could get around patent law by purchasing commodity soybeans from his local elevator; seeds that other farmers sold to the elevator at harvest and which normally would be shipped elsewhere for use.

Bowman believed he could claim the purchase legal under the doctrine of patent exhaustion where the initial authorized sale of a patented item terminates all patent rights to that item.

Writing for the court Justice Elena Kagan said:

“…the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied) …Were the matter otherwise, Monsanto’s patent would provide scant benefit. After inventing the Roundup Ready trait, Monsanto would, to be sure, receive its reward for for the first seeds it sells. But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly. And farmers themselves need only buy the seed once, whether from Monsanto, a competitor, or (as here) a grain elevator.”

Note that Kagan was not shy in saying Monsanto has a monopoly regarding its round-up ready soybeans.  I know farmers chafe mighty having to pony up whatever Monsanto and other seed companies charge and seed prices have continued to rise in recent years despite a lagging farm economy.

But some enterprising farmer might want to take another run at Monsanto and the Supreme Court.

Last month, the Supreme Court gave consumers a stunning win, turning patent laws on its head in a case about toner cartridges.  In Impression Products v. Lexmark, the Supreme Court ruled that Lexmark could not use patent laws to prevent other companies from reselling its old cartridges.

Lexmark argued before the Supreme Court that companies which refurnished and resold its cartridges without permission violated patent law; that it had patent rights beyond the initial sale to cover future re-sales of its cartridges.

Sound familiar?

Lexmark was hopeful for a win.  The federal circuit had ruled in its favor, saying that Lexmark could sue under patent laws because the company had clearly communicated lawful restrictions regarding post-sale use or re-sale of its cartridges.  And since Impression Products knew of Lexmark’s restrictions and ignored them, Lexmark could sue for infringement.

But writing for the court Supreme Court chief justice John  G. Roberts Jr. disagreed with the federal circuit’s logic:

“This Court accordingly has long held that, even when a patentee sells an item under an express, otherwise lawful restriction, the patentee does not retain patent rights in that product. And that well-settled line of precedent allows for only one answer in this case: Lexmark cannot bring a patent infringement suit against Impression Products with respect to the Return Program cartridges sold in the United States because, once Lexmark sold those cartridges, it exhausted its right to control them through the patent laws.”

Now I do understand the distinction between the Supreme Court cases.  After all Impression Products was not using a Lexmark cartridge to manufacture exact replicas and then selling them at a deep discount.

But still the similarities between the two Supreme Court cases is striking.

And given the litigious climate we find ourselves in these days on so many agricultural issues, it would not surprise me in the least if a farmer fed up with Monsanto’s monopoly takes another crack at the company’s use of patent law.

About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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