The Bowman vs Monsanto Supreme Court hearing is big news in the United States and we are seeing ripple effects of it up here in Canada. Although some headlines sparked by interest groups that oppose modern agricultural production methods, including use of genetically modified (GM) crops, might suggest otherwise, this case is not about farm-saved seed. This case is an attempt to make an exception in well-established patent law for products of agricultural biotechnology, thereby granting the purchaser of GM seeds the right to copies of that innovative technology.
Bowman (the plaintiff and an Indiana farmer) and the Center for Food Safety (CFS) and Save Our Seeds (SOS) want the Supreme Court to reverse lower court decisions upholding Monsanto's patent rights and conveyance of limited-use rights to farmers. Such a reversal would have great applicability to other industries and would devastate innovation in biotechnology and other technologies that are based on inventions that are readily copied. What incentive would inventors in the public and private sectors have to invest in research and development if they had virtually no protection from others copying their inventions? Bowman argues in the case of Monsanto's patented soybeans, the company's rights were terminated after the first sale and those rights should not extend to progeny with Monsanto's patented technology.
So who is the real villain in this drama? Is it Monsanto, who invested 10+ years and $100+ million in development of improved soybeans widely adopted by farmers globally because of their benefits; or is it Bowman and interest groups that have rolled this recent case into a 'save the seeds' campaign? In one of her most recent articles, Debbie Barker (international director for CFS and project director for SOS) stated: "The Supreme Court ought to rule in favour of Bowman so that instead of farmers becoming modern-day serfs of agrichemical companies, they can regain traditional seed rights."
But Barker is out of touch with the practices of today's farmers. In Canada alone, farmers have been using certified seed as part of their operations for over 100 years. This is nothing new. Very few farmers, if any, breed seed these days. In his opinion piece in CNN's Eatocracy, Indiana farmer Brian Scott states: "If we wanted to breed our own varieties I'm sure we could, but I look at it right now as division of labor. Seed companies are great at coming up with great products, and farmers are great at turning those products into a bounty of food, feed, fuel, and fiber."
Years of public and private research costing millions and millions of dollars have gone into producing modern seeds that perform better than previous generations. Farmers want to plant the best, locally adapted and productive package of genetics available. Patented soybeans are grown by more than 90% of the 275,000 soybean farms in the United States. For the record, nobody forces a farmer to agree to the terms of a seed purchase. If a farmer wishes to forgo the advantages of a superior variety, he or she can simply use older, unrestricted crop varieties. But as this case documents, farmers want to plant improved varieties and they want GM technology - the vast majority are willing to pay a premium for the benefits, and a few, like Bowman want it all and for free.
Why are patents important? Patents are a provision of exclusive rights granted to an inventor for a limited period of time. Rhetoric might suggest that patents are 'bad' but they drive investment in invention and innovation in the public and private sectors. Intellectual property rights (IPRs) exist for a reason. If there are no property rights, there is no protection. If there is no protection, there is no return on investment. If there is no return on investment, there is no innovation. And if that happens, we all lose.
When Bowman purchased the commodity seed from the grain elevator, he knew exactly what he was buying. By planting those seeds, Bowman was using copies of the company's technology for personal gain, just as if he had copied music or software and sold it for a profit; he didn't have that right and he knew it. Reports coming out of the hearing on the 19th suggest that the Supreme Court is leaning in favour of Monsanto. The alternative would be unthinkable. Not only would there be huge implications for modern agriculture, but for self-replicating technologies in a range of industries that rely on IPRs to protect their investments (software, vaccines, cell lines). Without access to new and innovative crop varieties, we are hard-pressed to meet the challenges of a growing world population, shrinking arable land base, environmental issues, disease, pests and drought.