Supreme Court

The case of Bowman v. Monsanto, now underway in the Supreme Court, could set a precedent for the patent rights on seeds. If Bowman wins, the ruling could drastically influence the way Monsanto and other biotech firms do business, limiting their ability to claim ownership over anything that can replicate itself indefinitely. But how likely is it that Monsanto, the largest seed company in the world, will actually be defeated?

According to the New York Times, last week at the Supreme Court as arguments were under way, signs indicated a latent victory for Monsanto including long-winded and one-sided arguments allowed by the Justices from the defendants. “A lawyer for Monsanto, Seth P. Waxman, a former United States solicitor general, was allowed to talk uninterrupted for long stretches, which is usually a sign of impending victory.”

The case came to the Supreme Court after Vernon Hugh Bowman, an Indiana farmer, was ordered by a federal judge to pay Monsanto more than $84,000 for allegedly saving seeds he bought from Monsanto and planted after the initial crop he was contracted for. After his Monsanto crops were harvested, Bowman purchased seeds from a grain elevator that were a mix of a number of different seed varieties, including Monsanto’s Roundup Ready soy, which he planted. The distinction is a slight technicality, according to Monsato, and the company insists Bowman is still financially obligated to pay for misuse of the seeds. The practice of “seed-saving” is a violation of Monsanto’s strict patent rules and the giant biotech company has successfully sued more than 140 farmers for such violations. Bowman cited his legal right to replant those seeds as part of a doctrine called patent exhaustion, which, he claimed, allowed him to use the seeds he purchased legally from the grain elevator without being obligated to pay Monsanto.

The United States Court of Appeals for the Federal Circuit upheld the Indiana federal judge’s ruling, citing that Bowman violated Monsanto’s patent rights when planting the seeds. Bowman has hung his hopes on the Supreme Court—not just as a possible win for himself—but for farmers everywhere who have struggled against the strict rules, fines and restrictions that come with planting patented genetically modified seeds. Monsanto’s Roundup Ready soybean seed is the particular seed in this case. Developed in just 1996, it is now grown on more than 90 percent of all of the nation’s soybean farms and has become a huge part of the American diet in many processed forms as well as a staple in livestock feed.

According to the Times, Chief Justice John G. Roberts Jr. asked Bowman’s attorney why in the world anybody would “spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?” Justice Elena Kagan said contracts, instead of patent rights, which Bowman’s attorney presented as an alternative seemed “peculiarly insufficient” and that any escaped seeds would make the contract “worthless.” Justice Stephen G. Breyer offered his opinion on what Bowman could have done with the seeds: “You can feed it to animals, you can feed it to your family, make tofu turkeys,” but, he said, using a disturbing comparison, “you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”

Justice Clarence Thomas has not recused himself from the proceedings despite spending four years as legal council for Monsanto. But even if he did, the federal government still supports Monsanto, even though the human and environmental health risks connected with GMO seeds continue to come to light. Farmers promised decreased use of pesticides have had to increase applications and bring on even more potent herbicides and pesticides to combat the growing number of insects and weeds that have become resistant to Monsanto’s Roundup. Health issues including obesity, diabetes, digestive and reproductive disorders, organ damage and some cancers have all been connected to GMO seeds and the pesticides commonly used on them.

Monsanto was recently instrumental in defeating California’s Proposition 37—a measure on last November’s ballot that could have made it the first state to require mandatory labeling of all foods containing genetically modified ingredients. Californians and anti-GMO activists around the country were hopeful and confident the measure would pass—putting the state in the company of more than 60 countries with GMO regulations. And despite being outspent by the opposition by nearly five to one, hopes remained incredibly high as the votes came in. But Monsanto, along with other big-ag and food corporations, succeeded in defeating the measure by six percentage points thanks to a campaign strategy that was highly deceptive; the “No on 37″ advertisements never mentioned genetically modified ingredients, but instead positioned the measure as a “costly food label bill” regardless of the lack of any sound evidence that it would cost taxpayers a single penny.

And while it may take the Supreme Court until this summer to rule on Bowman v. Monsanto, it’s looking like the giant will pull out another victory. For the time being, anyway.  For those who want to see transparency in the U.S. food system and are now perhaps, growing rather tired of the arduous processes and the seemingly unstoppable force that is Monsanto, here’s a little reminder from one of the greatest and unlikeliest of victors, Gandhi:  “When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it—always.”

Keep in touch with Jill on Twitter @jillettinger

Image: Phil Roeder