OP-IP: So God made a Farmer....Indiana planter allegedly runs afoul with Monsanto's patents

So God made a Farmer...Indiana planter allegedly runs afoul with Monsanto's patents

Hugh Bowman is accused of infringing Monsanto's Roundup® (active ingredient, pesticide/weed killer-glyphosate) resistant soybean plants patents. The facts of the story are complex to say the least. The root of the dispute is anything but garden variety patent infringement. The alleged infringement stems from Bowman's unique method of cultivating pesticide-resistant soybean plants, a method which Monsanto is attempting to nip in the bud. But is Bowman's planting technique pure genius or patent infringement?

Digging deeper into the dispute, the germane facts are as follows. Monsanto holds patents, U.S. Patent No. 5,352,605 and RE 39,247, relating to pesticide (Roundup®/glyphosate) resistant soybean plants, seeds and methods for growing glyphosate resistant soybean plants. These plants/patents are valuable since they allow one to apply pesticides, such as weed killers to the plants, which in turn, kill the weeds but not the pesticide-resistant plants.

Bowman purchased "commodity seeds" which included the seeds of both the progeny of Monsanto's patented plants (i.e. glyphosate resistant plant seeds) as well as non-patented, not resistant seeds. These seeds were sold with the "intention" that they not be planted but used for other purposes including as feed stock. However, the seeds were not sold with any contractual obligations limiting the use of the sold commodity seeds. Bowman planted the commodity seeds and then applied glyphosate as a weed killer/pesticide. The applied glyphosate killed the non-glyphosate resistant plants, leaving the glyphosate resistant ones. The result was that all remaining plants were glyphosate resistant. Bowman then collected seeds from the remaining plants and used the collected seeds in subsequent planting by mixed them with new commodity seeds. As in the prior planting, he applied glyphosate. He repeated this practice for years.

Monsanto alleges that Bowman's planting the commodity seeds (a mixture of glyphosate resistant plant seeds and non-pesticide resistant plant seeds) followed by application of glyphosate infringes Monsanto's patents. Monsanto and its advocates assert that if Bowman's practice is not considered patent infringement, and is allowed to continue, this will undermine (biotechnology patent) life as we know it and thwart any incentive for biotechnology companies to invest in novel genetically engineered plant species. Bowman's supporters say, "hogwash"; they argue that Monsanto and other biotechnology companies can use contracts and licenses to ensure their patented inventions are adequately protected and the companies compensated for their research and development in bring innovations to the public.

The U.S. Supreme Court will hear oral arguments later this month. Unfortunate for Bowman, Monsanto's patents include claims to genetically modified, glyphosate resistant soybean plants as well methods for growing the glyphosate resistant plants and applying glyphosate. Further, Monsanto won at the district court level and the Federal Court of Appeals level. However, anything can happen when the U.S. Supreme Court weighs in on a patent dispute and cultivates its interpretation of U.S. patent law.

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