The Bowman vs. Monsanto Supreme Court hearing is big news in the U.S. and we are seeing ripple effects here in Canada. An interesting by-product of this case is how it is being reframed in the media by interest groups.
Although some headlines might suggest otherwise, this case is not about farm-saved seed. This case is about something called the "patent exhaustion doctrine," which is relevant for a number of industries and companies — even outside agriculture.
When I refer to interest groups, I mean NGOs that have an axe to grind with Big Ag. Many stories currently circulating in the media are penned by the Center for Food Safety (CFS) and Save Our Seeds (SOS). This past December, these groups challenged Monsanto via a friend-of-the-court brief they filed in support of Bowman. Collectively, CFS and SOS have rolled this case into a save-the-seeds campaign, spinning such stories as Traditional seed rights of farmers threatened!
Farmers have been using certified seed for more than 100 years in Canada. Very few farmers breed seed these days. In an opinion piece, Indiana farmer Brian Scott stated: "If we wanted to breed our own varieties, I'm sure we could, but I look at it as division of labour. Seed companies are great at coming up with great products, and farmers are great at turning those products into (food and feed)."
In addition to gaining higher yields, certified seed is important for farm-based risk-management. Not only do farmers benefit from "clean" seed, they want to plant the best, locally adapted and productive package of genetics available. 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 certified seed, he or she can simply use older, unrestricted crop varieties. There are hundreds of varieties in the public domain — off-patent or non-GM — that can be freely accessed.
The genesis of this Supreme Court hearing lies in other lower-court cases that examined the issue of patent exhaustion. Those courts ruled in favour of Monsanto.
But what if the Supreme Court reverses lower-court rulings?
First, let's examine the value of patents. Rhetoric might suggest patents are bad. But companies need to protect inventions so they can generate revenues to recover costs and return a profit for shareholders. It takes more than 10 years and in excess of $100 million to bring one genetically engineered crop variety to market. Why would anyone want to invest in these varieties if they couldn't protect that investment and recoup costs? It is important to note the public sector also protects its crop varieties through plant breeders' rights. 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 — in both public and private sectors. If that happens, we all lose.
The Bowman vs. Monsanto case is not about farm-saved seed. There is no dispute among parties about the facts. More than 90 per cent of soybeans grown in the U.S. are patent-protected. By his own admission, Bowman bought commodity soybean seeds from a grain elevator, knowing they were likely to contain patented technology, and deliberately planted them on his farm.
In doing so, 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 suggest 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 other industries that rely on property rights to protect investments (software, vaccines, cell lines). Without the investments made to date, we wouldn't have the high-yielding varieties we do or the promise of new ones.
Without access to innovative crop varieties, we are hard-pressed to meet the challenges of a growing population, shrinking arable land base, environmental issues, disease, pests and drought.
Cami Ryan is a research associate, College of Agriculture and Bioresources, University of Saskatchewan.