SCOTUS Upholds Farmer’s Loss in Battle against Soybean Giant
By Gordon Daniell
Without comment, the Supreme Court upheld a ruling by the Court of Appeals for the Federal Circuit in a patent infringement suit brought by Montsanto, a major player in the agribusiness sector, against farmer Homan McFarling. The appeals court opinion (Monsanto Co. v. McFarling, 488 F. 3d 973) determined, among other things, that $375,000 in damages were reasonable after McFarling was found to have violated Monsanto’s patents in herbicide resistant seeds by re-planting his fields from second and later third generation seeds, rather than re-purchasing another worth of first generation seeds.
Monsanto currently holds a number of patents related to herbicide resistant soybean seed. The first patent at issue describes a “DNA molecule that encodes a genetically modified enzyme,” which allows plants to survive exposure to glyphosophate herbicide (commonly known as Round-Up, which is Monsanto also produces). Monsanto’s second patent claims a plant cell containing a genetic promoter sequence that helps plants to produce the modified enzyme. In other words, Monsanto has patented a genetically modified soybean plant that can resist Round-Up, as well as the genetically modified cells of the plant that produce the enzyme. For farmers, this means that they can plant this Round-Up resistant plant, then spray their fields at will with Round-Up, effectively eliminating every other plant except for Monsanto’s genetically modified soybean plants.
In violation of a “technology licensing agreement” McFarling signed when he purchased his first year’s crop of Round-Up resistant seed in 1998, McFarling saved the seeds that grew naturally from his 1998 crop and replanted them during the 1999 growing season. He followed the same procedure in 2000 with the seeds that grew from the 1999 crop. At trial, McFarling raised the defense of patent misuse, arguing that the seeds he sowed in 1999 and 2000 were not covered by the patents on the 1998 seed, and that Monsanto’s patent did not cover the seeds themselves. McFarling also argued that the Plant Variety Protection Act precluded enforcement of the patent.
The Federal Circuit rejected all of McFarling’s defenses. The court determined that the patented 1998 seeds and the 1999 seeds produced during the 1998 season were identical copies. The court also determined that, although Monsanto did not have a patent on the physical seeds, Monsanto did have a patent on the cells containing the genetic trait that Monsanto patented.
The court ultimately held that that the patents protected both Monsanto’s original seed and the “farmer-grown” seed that McFarling planted.