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November 2, 2003
Saving Seeds Subjects Farmers to Suits Over Patent
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."
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