The one who owns the seeds, owns the seed market!

The Way It Used To Be

Indiana Farmer Vernon Bowman, like many other farmers of yesteryear, saved some of his soybeans from each year’s crop for replanting a new crop the next year.  After several years of this, Monsanto sued in Federal Court in Indiana.  Bowman lost and was ordered to pay Monsanto $84,456.  Bowman appealed, and, ultimately lost in the U.S. Supreme Court on May 13, 2013. 

The seeds that Bowman used were genetically modified.  Monsanto created genetically modified soybean seeds and obtained patent’s on them.  Even though Bowman grew them in his own fields from seeds saved from the prior year’s crop, in the words of the U.S. Supreme Court “[b]ecause Bowman thus reproduced Monstanto’s patented invention” the law does not protect him, and a “patentee [such as Monsanto] retains an undiminished right to prohibit others from making the thing his patent protects”—even invented seeds.  Whether the invention is a cell phone screen, a prescription medication, or new kind of toy, a person cannot, without permission, legally copy and reproduce an identical product.  The same holds true for patented seeds.  Bowman’s seeds were unauthorized copies of the “patented invention” and, therefore, illegal. 

 As early as 1999, thirty percent of all soybeans worldwide contained  Monsanto’s patented genetics.  Now, some sources indicate that ninety-eight percent of all soybeans grown in the United States contain Monsanto’s patented genetics.  Only Monsanto has the right to save these seeds and replant them.  And, of course, it may license seed farmers to do the same.  Anyone else doing so without permission can be sued and will, likely, lose. 

But they’re my seeds! 

Why can’t you save your seeds or otherwise reproduce your plants for replanting or resale?  They probably are protected by one or more of the following laws:  Title 35 of the United States Code (patent law), the Plant Patent Act of 1930, the Plant Variety Protection Act, the Federal Seed Act, state seed licensing laws, or private contract law.  Seeds protected by these laws play a major role in the marketplace today.  The U.S. Patent and Trademark Office has issued close to 2,000 utility patents for plants, plant parts, and seeds.  These laws and the patents granted protect commercial varieties of soybeans, corn, wheat, rapeseed, and numerous other plants.  The reach of these laws extends to the private family garden.  Even if you are capable of reproducing them on your land, you likely have little or no right to do so without permission, which generally comes with a price. 

 Statutory protection of seeds is of obvious commercial advantage to the developers of those seeds.  Patents put the patent owners into a monopoly-like position, affording them the opportunity for great profit.  The seed “inventor” of any seed of commercial value has the opportunity for significant control of the entire agricultural market from family farmer to consumer.  Farmers who farm these seeds in compliance with law may see increased yields and higher profits—in the near term.  Long term, it significantly depends on the generosity and integrity of the seed “inventors.”  As one DelawareCounty farmer explained, as a practical matter of agribusiness economics, many family farmers lack meaningful profitable alternatives than to buy patented or licensed seed, because they require reliable crop yields to maintain profitability.  Farm equipment payments must be paid, as must farmland mortgages or leases.   

 Commercial growers of seeds that are not protected by the laws described above must be especially careful because the plant seed of some plant varieties, through inadvertent cross-pollination can, over time, come to contain patented genetic material.  While, legally, it probably is the obligation of the growers of patented seeds to prevent pollen from their plants from drifting out of their fields onto adjoining property, most farm fields contain inadequate wind breaks, barrier rows of crops, or other mechanisms to prevent cross-pollination through pollen-drift.  Blaming pollen-drift from the neighboring farmer’s field would be the obvious factual defense if sued by the patent holder, but it would not guarantee victory. 

What can be saved?  

Only open-pollinated, seeds can be saved and reproduced without risking serious legal problems.  Essentially, such seeds are heirloom varieties in the public domain.  However, re-selling seed produced from these crops, nonetheless, may result in violations of state and/or federal law that could include lawsuits, fines, and, in some cases, criminal prosecution.   Before using or selling any saved seed for commercial seed or food production (whether for animals or humans) it is critically important to know and comply with applicable law.

About D.J. Young

D. J. Young writes the DelawareO legal blog. He is a 1998 graduate of the University of Notre Dame Law School. He is a partner with the Delaware, Ohio law firm of Firestone, Brehm, Wolf, Whitney & Young LLP, and can be found on the web at www.fbylaw.com. This blog contains news and commentary and is not intended to be legal advice directed to any particular group or person. Interested persons must see an attorney to discuss their particular factual and legal circumstances.

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