THE BLOG
02/25/2013 08:19 pm ET | Updated Apr 27, 2013

Monsanto v. Bowman: The Master's Law

The U.S. Supreme Court heard arguments for Vernon Hugh Bowman v. Monsanto Co. The 75-year-old Indiana soybean farmer grew and harvested seeds he bought (as grain) from a local grain elevator that were under patent owned by Monsanto Co. Mr. Bowman used this cheap source of seed for his more risky second annual crop, repeatedly planting, cultivating, and harvesting them, just as farmers have done for around 10,000 years.

The difference, of course, was that these seeds contained Monsanto's Roundup-Ready genes -- and Mr. Bowman applied Roundup to control weeds without signing a use agreement or paying royalties to Monsanto. His attorney Mark Walters argued that Monsanto's patent did not extend to its seed's progeny, claiming "patent exhaustion" after the second generation.

The argument had about as much chance as a seedling in a hailstorm.

It is painful to read the transcripts. Walters' argument is continually interrupted, challenged and dismissed by the judges, who joke and chuckle through the proceedings. Seth Waxman, the lawyer for Monsanto, is largely given free rein to develop Monsanto's case. Not that the judges were discriminating against Vernon Bowman under the law. Under the law, Bowman was toast.

The rationale for infinite generational patent protection was given by Chief Justice Roberts in his opening question to Bowman's lawyer:

"Why in the world would anybody 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?"

Well, certainly a corporation like Monsanto wouldn't.

But guess what? Since the dawn of agriculture farmers have improved seeds even though "as soon as they sold the first one anybody could grow more and have as many of those seeds as they want." That is what gave the world the tremendous agro-biodiversity of cultivars that our survival as a species depends upon. Thousands of years of farmer's selection, breeding and genetic improvement has been free to Monsanto. No matter. A farmer breaking the modern patent laws of today's corporate food regime won't get any love from the judges whose job it is to enforce the laws of the regime.

Imagine an African-American son or daughter of enslaved parents in the antebellum U.S. trying to argue that they were not private property because she or he had never been bought or sold. Just like Monsanto's patents on living genes, the ownership of human beings under slavery extended to second, third and all generations. Monsanto is master of the seeds -- and the farmers who have little choice but to buy them are rapidly becoming serfs, legally bound to the giant's genetic fiefdom.

The problem before the U.S. Supreme court in Bowman v. Monsanto was not the cost-cutting strategies of a 75-year-old farmer. The problem is the law itself.