Patent poses seeds of dispute

The big guy is not always wrong. In a patent protection case before the Supreme Court, mega-corporation Monsanto has a better argument than an Indiana farmer who bought and reused herbicide-resistant seeds.

Reporters love stories about the little guy taking on the big guy, and that's been the continuing story line on the litigation involving 75-year-old Vernon Bowman of Sandborn, Ind., and Monsanto.

A quotable fellow with a loyal hound-dog and a preference for rotary-dialed phones, Bowman was sued by Monsanto for violating the company's patent rights to its herbicide resistant seeds. The big company won an $84,000 judgment against the old farmer, but the U.S. Supreme Court will be required to write the final chapter. It heard arguments last week.

People instinctively root for the little guy. That's so much true that, during the Senate confirmation hearing of Chief Justice John Roberts, U.S. Sen. Herb Kohl asked Roberts if he would be willing to pledge to rule in favor of little guys against big guys.

It was not exactly a high-water mark for questioning of judicial nominees. But Roberts diplomatically replied that he would be more than happy to rule in favor of little guys when they are, in his opinion, on the right side of the law while reserving the right to rule for big guys when they are.

This looks like one of those cases where the big guys just happen to have the better argument.

Monsanto has spent a fortune perfecting its herbicide resistant seeds. That's why it insists farmers use Roundup Ready seeds only for a single crop. Farmers don't necessarily like it, but they like the yields the seeds produce, particularly when soybean and corn prices are as high as they have been over the last few years.

Not wanting to buy new seeds, Bowman tried to get around the restriction by buying used herbicide resistant seeds, which are often sold for feed, from a local grain elevator.

Monsanto eventually found out about it, sued Bowman and won a judgment that he appealed.

This issue is not limited to seeds. Patent protection is a huge issue across the board. That's why a variety of companies are waiting for the court's ruling.

During oral arguments, Chief Justice Roberts raised the issue that everyone says is crucial.

"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?" he asked.

The answer is obvious. Nobody would. Patent protection is crucial if entrepreneurs are to capitalize on their investments. Without the incentive of making a profit, spending on research and development would be a mere academic exercise, something businesses cannot afford to do.

Bowman's lawyer didn't have many good answers to the court's questions. He said it wasn't that many seeds that would be reused so "it's never going to be a threat to Monsanto's business." He said that herbicide resistant seeds could be blown from one farmer's field to another, leaving farmers at the mercy of litigation by Monsanto.

The consensus following oral arguments is that Monsanto will win this case. If so, Bowman said he doesn't have the money to pay the judgment. But Monsanto is probably more interested in future profits from its protected patents than collecting its $84,000 judgment.

Sections (2):Editorials, Opinion
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