Saving Seeds Subjects Farmers to Suits Over Patent

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Sun, 02 Nov 2003 16:33:52 +0100
From: Cheryl Gilbert <cgilbert () xs4all nl>
Subject: For IP? NYTimes.com Article: Saving Seeds Subjects Farmers to Suits
 Over Patent
To: dave () farber net

Dave,

For IP?

Long-time reader, and my first submission. Seems interesting given how many
other discussions about IP we've been having.

Cheryl

>
> Saving Seeds Subjects Farmers to Suits Over Patent
>
> November 2, 2003
>  By ADAM LIPTAK
>
>
>
>
>
> TUPELO, Miss., Oct. 30 - Homan McFarling has been farming
> here all his life, growing mostly soybeans along with a
> little corn. After each harvest, he puts some seed aside.
>
> "Every farmer that ever farmed has saved some of his seed
> to plant again," he said.
>
> In 1998, Mr. McFarling bought 1,000 bags of genetically
> altered soybean seeds, and he did what he had always done.
> But the seeds, called Roundup Ready, are patented. When
> Monsanto, which holds the patent, learned what Mr.
> McFarling had sown, it sued him in federal court in St.
> Louis for patent infringement and was awarded $780,000.
>
> The company calls the planting of saved seed piracy, and it
> says it has won millions of dollars from farmers in
> lawsuits and settlements in such cases. Mr. McFarling's is
> the first to reach a federal appeals court, which will
> consider how the law should reconcile patented food with a
> practice as old as farming itself.
>
> If the appeals court rules against him, said Mr. McFarling,
> 61, he will be forced into bankruptcy and early retirement.
>
>
> "It doesn't look right for them to have a patent on
> something that you can grow yourself," he said.
>
> Janice Armstrong, a Monsanto spokeswoman, said the company
> invested hundreds of millions of dollars to develop the
> seed. "We need to protect our intellectual property so that
> we can continue to develop the next wave of products," she
> said.
>
> Were farmers allowed to replant the seed, the company said
> in its appeals court brief, "Monsanto would effectively,
> and rapidly, lose control of its rights."
>
> That is because one bag of the patented seed can produce
> about 36 bags of seed for use in the next growing season.
> The number grows exponentially. By the third season, the
> single bag of seed could generate almost 50,000 bags.
>
> Ms. Armstrong said that there are about 300,000 soybean
> farmers in the United States, and that Monsanto has
> disputes with only about 100 of them a year. Most disputes
> are resolved quickly and informally, she said.
>
> Farmers here said the company's efforts to investigate the
> replanting of saved seeds have been intrusive, divisive and
> heavy-handed.
>
> "They hired the whole city of Tupelo's night police force,"
> said Mitchell Scruggs, 54, who is a defendant in another
> saved-seed lawsuit. "They bought a lot across the street
> from me for surveillance. They're spending all this money
> on airplanes, helicopters, detectives, lawyers."
>
> "They told a federal judge that it wasn't a monetary
> issue," Mr. Scruggs said over the roar of three cotton gins
> at his farm here. "They wanted to make an example of me.
> They want to destroy me to show others what could happen to
> them."
>
> In this respect, the seed lawsuits resemble the record
> industry's actions against people who share music files on
> the Internet. There, too, the goal is not primarily to
> recover money from particular defendants but to educate the
> public, and perhaps to scare other potential offenders.
>
> Ms. Armstrong acknowledges that Monsanto must walk a fine
> line.
>
> "These people are our customers," she said, "and we do
> value them. But we also have to protect our intellectual
> property rights."
>
> Legal experts say Monsanto is likely to win its appeal, in
> part because Mr. McFarling signed a standard contract when
> he bought the seed. He said he did not read the contract at
> the time and it had never occurred to him, until Monsanto
> contacted him with a $135,000 settlement offer, that he had
> done anything unlawful. He had paid about $24,000 for 1,000
> bags of seeds, including a "technology fee" of $6.50 per
> bag.
>
> The contract, which Monsanto calls a technology agreement,
> said buyers could use the seed "only for a single season"
> and could not "save any seed produced from this crop for
> replanting."
>
> One judge, dissenting in an earlier appeal that upheld an
> injunction against Mr. McFarling, wrote that the
> boilerplate contract did not give Mr. McFarling a fighting
> chance.
>
> "The terms printed on the reverse of the technology
> agreement are not subject to negotiation and Monsanto's
> billions of dollars in assets far exceed McFarling's
> alleged net worth of $75,000," wrote Judge Raymond C.
> Clevenger III of the United States Court of Appeals for the
> Federal Circuit. The same court is hearing Mr. McFarling's
> second appeal.
>
> "Even an attorney reading the technology agreement might
> not understand that it purports to subject one to patent
> liability in Missouri," where Monsanto is based, Judge
> Clevenger continued. Someone versed in the specialized
> decisions collected in law books might have understood it,
> he wrote, "but we may presume that few feed stores stock
> the Federal Reporter on their shelves."
>
> Lawyers for the farmers here have worked hard to frame
> defenses that might work in court. Mr. Scruggs, for
> instance, promises to attack the validity of the patents
> themselves and to show that the company's practices amount
> to a violation of antitrust laws.
>
> Mr. Scruggs said that unlike Mr. McFarling, he did not sign
> the technology agreement. Even without it, though, legal
> experts said the case against him was strong. The idea that
> planting saved seed amounts to patent infringement, they
> said, follows inexorably from two United States Supreme
> Court decisions allowing patents for life forms.
>
> Monsanto's soybean seeds account for at least two-thirds of
> the American soybean harvest. The seeds are called Roundup
> Ready because they are resistant to a popular herbicide
> called Roundup, which is also a Monsanto product.
>
> Mr. McFarling and Mr. Scruggs have been forbidden by court
> orders to use Monsanto's products. They said that
> conventional seed was perfectly good, but that effective
> herbicides had become hard to find.
>
> Mr. Scruggs said the courts should find a way to weigh
> traditions almost as old as humanity against fostering
> high-technology innovations.
>
> "It's a God-given right that farmers were given when they
> were born to save these seeds," he said. "All we are is
> farmers trying to scrape a living out of this dirt."
>
>
http://www.nytimes.com/2003/11/02/national/02SEED.html?ex=1068785507&ei=1&en
=dd5891cbe6e13a6a
>
>
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