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Hanna: Monsanto's Bean Counters

02/25/13 7:55AM By Cheryl Hanna
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(Host) Usually, "a hill of beans" means very little. But last week, the United States Supreme Court heard a case that could attach a pretty heft price tag to that hill of beans - soy beans, that is. Commentator and Vermont Law School Professor Cheryl Hanna explains.

(Hanna) This story began when Vernon Bowman, an Indiana farmer decided to plant some soy beans. But these were not any soy beans: these were Monsanto's Round-Up ready soy beans that he bought from a grain elevator. These genetically modified seeds can be sprayed with the herbicide Round-up. Round-up kills the weeds and leaves the soybeans.

It took thirteen years and millions of dollars for Monsanto to develop these beans, and to protect their investment, they got a patent from the United States government which allows farmers to plant the seeds once. But seeds self-replicate, and the patent arguably forbids farmers from planting the second generation of seeds.

Bowman had bought an original batch of the seeds for his main crop, but decided to do a second planting using seeds intended for feed and milling and did so for eight years. The soybeans grew, and Monsanto sued him and won close to $85,000.

The case was just argued before the United States Supreme Court, and I know that Vermonters are closely watching it. Many farmers here and across the country have felt that Monsanto bullies them - controlling how the seeds are used but incurring none of the risks of farming. Indeed, Monsanto has been very aggressive with farmers. As well as demanding payment for self-replicating seeds, Monsanto has successfully sued farmers whose crops have been infiltrated by Round Up ready soybeans that have drifted from other farms. And Monsanto has made clear that it will sue the state of Vermont if it does pass a bill requiring the labeling of genetically modified foods.

Monsanto hired Seth Waxman, the former solicitor general and Supreme Court titan, to argue their case. Waxman told the Court that Monsanto needed to protect its investment and that case has implications for other self-replicating technologies. Companies would have no incentive to invest in these products if purchasers could use their seeds a second-time around. During argument, Waxman included a startling fact: Monsanto's technology is arguably the largest, fastest technological adoption in human history. The first seed was sold in 1996; it's now 90% of the soybean farmland in the entire world.

It is also interesting to note the Obama Administration, which also argued, sided with Monsanto.

And Mr. Bowman's lawyer had a bad court day- a really bad court day - including calling Justice Breyer "Mr. Breyer." These mistakes aren't fatal, but they do suggest that, increasingly, who your lawyer is makes a big difference in these high stakes cases. Bowman's argument was just not as convincing if you followed the questioning.

Most legal analysts have their money on Monsanto, and I've got to agree. It seems highly unlikely the Court would limit Monsanto's patent to the first planting. A win for patent protection, a loss for the average farmer.

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