The court upheld a lower court ruling that levied an $84,000 fine against 75-year-old Hugh Bowman, who produced eight separate crop yields using second and third generation seeds he bought from a local grain elevator after his duly licensed original planting.
“There are a lot of ways in which this decision and others like it have had a negative impact on farmers,” said Bill Freese, FSA's science policy analyst. “For example, it is not as widely known as it should be that Monsanto has sued thousands of farmers. They have systematically pursued legal action against at least 2,300 and possibly as many as 4,500 farmers and collected over $85 million from them in settlements. And we have gathered that data from Monsanto's own documents.”
And such aggressive actions usually result in out of court settlements because small and medium-sized growers cannot afford to fight Monsanto in court, Freese said.
So far, most cases have involved soybeans. A few have related to other seeds such as cotton and canola. “But in the future, this could affect any crop where a large seed company like Monsanto or DuPont or one of the other giants has a patent on a seed and farmers wish to replant,” Freese said.
There has been a dramatic change in the agricultural industry since the 1980s, Freese said. “Back then, about half the soybeans in the U.S. were replanted from saved seed,” he said. “Now it's just a couple of percent. That's how much the market has changed.”
The end result of the shift has been increasing control by giant corporations such as Monsanto of the world's food chain.
“We definitely have that going on in the seed industry,” Freese said. “If you look historically, most breeding was done by farmers. Then in the 20th century, it was mostly done in the public sector by land grant universities. And they would make the new seed varieties available at very low cost to private firms who would multiply and sell them to farmers. It's really just in the past several decades that a few large agri-chemical firms like Monsanto, DuPont and Dow, have come to dominate the market. The five big seed firms are now responsible for 58 percent of total seed sales in the world.”
The result has been a fourfold increase in the price of many seeds since 1995, Freese said. By definition, he said, that benefits large commercial growers and threatens the well being of smaller farms.
Otis Littlefield, a partner in the patent prosecution group at San Francisco law firm Morrison and Foerster, which represents a range of agricultural clients, rejected Freese's assessment.
The practical truth, Littlefield said, is that the U.S. patent system protects both large interests and small enterprises.
“I have clients who run the gamut,” he said. “And one of them is a small two-person operation that has developed a wonderful variety of broccoli that they license to growers in royalty agreements. And the same patent laws that protect Monsanto protect them. The bottom line is that all innovation that is patented is protected. It does not just apply to big corporate enterprises.”
Littlefield agreed with Freese that the Supreme Court ruling is not exclusive to soybeans and will likely be applied to future cases involving other seeds. “It can reasonably be extended to any kind of seed patents,” he said.
Littlefield also rejected a suggestion by FSA director Andrew Kimbrell that the decision will sharply drive up prices for farmers and consumers. “I can't imagine that Monsanto has not already been charging as much as they could for their seeds,” Littlefield said. “Demand for seeds is determined by the number of acres being farmed for a particular crop.”
And, he said, there is a natural, market-driven cap on seed prices. “And that is that a farmer will only pay the price for a patented seed if its value is represented in the effective production of the crop he is growing,” he said.
As a result of the Supreme Court ruling and its reinforcement of the market dominance of companies like Monsanto, DuPont and Dow, Freese advised farmers to buy seeds from smaller local providers as beneficial alternatives to the big producers.” Look for opportunities to promote economic democracy,” he said. “Look for smaller seed providers in your area and support them.”
And, he added, concerned farmers should lobby their congressional representatives for patent reform that supports the older but now largely ignored concept of anti-trust legislation that protects markets from monopolies.