Supreme Court seems on Monsanto's side over seed patent

Monsanto's patent for GM soybeans appears safe in the Supreme Court's hands. And that's good news for innovations in biotechnology, computer software and other self-replicating products.

The biggest mystery arising from the justices' 70-minute consideration Tuesday of an Indiana farmer's challenge to Monsanto, in fact, was why they had agreed to hear the case at all, since two lower courts already had ruled for Monsanto.

In a classic case of David vs. Goliath, 75-year-old Vernon Hugh Bowman is challenging the agribusiness giant's patent on soybeans that are resistant to the weed killer Roundup. He bought his first batch of "Roundup Ready" seeds from Monsanto but then bought a cheaper mixture from a grain elevator that included some Monsanto seeds.

It's the third generation of seeds that's at issue in the case, because Bowman then began replanting his own herbicide-resistant seeds — and that violated Monsanto's patent, the company claims.

From Tuesday's oral arguments, it didn't seem Bowman had a vote in the room. "You cannot make copies of a patented invention," said Justice Stephen Breyer.

It's for that reason Monsanto has required farmers using its seeds to sign an agreement promising not to save and replant harvested seeds. But even if there was no license, the justices seemed to doubt Bowman's right to create new generations of identical seed under patent law.

Bowman's attorney, Mark Walters, argued that Monsanto's patent rights were exhausted after the farmer bought his second round of seeds from the grain elevator. If that was not the case, he said, every grain elevator would be violating the patent, because Monsanto seeds are ubiquitous.

Besides, Walters argued, Bowman's use of grain elevator seeds "is never going to be a threat to Monsanto's business."

Chief Justice John Roberts disagreed, arguing that Monsanto never would invest what it did — hundreds of millions of dollars over 13 years, according to its attorney, Seth Waxman — if it would be easy for farmers to grow their own replicas.

On the other hand, Roberts said, the case plowed significant new ground worthy of consideration. The only similar case cited Tuesday was Microsoft's challenge to AT&T in a 2006 case involving software that digitally encodes and compresses recorded speech. Though Microsoft won the case, it was only because the new software was manufactured abroad, not in the U.S.

The Monsanto case could affect other inventors of self-replicating technological innovations, from software to cell lines. It attracted briefs siding with Monsanto from the biotechnology industry and intellectual property owners.

On the other hand, the likely Monsanto victory won't help when it comes to farm prices. The Center for Food Safety released a report last week showing that three corporations control more than half of the global commercial seed market, resulting in dramatic price increases. From 1995-2011, the average cost to plant 1 acre of soybeans rose 325%, the report found.