"Happy families are
all alike; every unhappy family is unhappy in its own way."  Leo Tolstoy, Anna Karenina

By Kevin E. Noonan —

A
great many amicus briefs have been filed in support of affirmance of the
Federal Circuit's decision in Bowman v. Monsanto and many of them are
reminiscent of Tolstoy's happy families.  Accordingly, in reviewing these briefs, these posts will endeavor to
identify unique aspects or arguments raised by amici, to avoid dulling
the impact of the relevant arguments relating to patent exhaustion, the
repair/reconstruction doctrine, and other robust grounds for affirmance.

BayhDole25, Inc. is, according to the brief's Statement of Interest, a private,
non-profit, non-governmental organization dedicated to "increase[ing]
awareness of the importance of Bayh-Dole for enabling an environment for
commercialization and assimilation of new technologies for the creation of
economic and social benefit."  The BayhDole25 brief is directed to two aspects of the case:  the contractual limitations of
the Technology Agreement and their violation by Farmer Bowman, with its
implications; and the importance of patenting for agricultural innovation.

Regarding the first argument, BayhDole25 argues that the Court should give "great weight" to the contractual
aspects of case, including not only the Technology Agreement but also the role
of grain elevators and commodity seed in the agricultural economy.  The brief explains why the Technology
Agreement did not expressly bar Farmer Bowman's activities — based on what
commodity grain elevators historically do, including:

• Direct use as feed for livestock,
• Milling or other processing for industrial or food products, and
• Shipment
to markets, including possible export to world markets.

"With this
backdrop, it becomes clear that barring commercial sale of the soybean crop to
grain elevators would be impracticable and would impose unreasonable added
transaction fees and logistical burdens onto farmers."  Thus, the brief argues that the economic
arrangements protected by contract were insufficient to prevent Farmer Bowman's
activities and that patent protection was necessary.

Turning to Farmer Bowman's actions, the
brief argues that this was an "intentional strategy" employed "each
year" as a way to permit Farmer Bowman to replant saved seed — something
that is an "atypical and unconventional" use of grain elevators that "should
be viewed as extraordinary and unexpected."  BayhDole25 asserts that
Farmer Bowman "laundered" his saved seed through the grain elevator, "delivering
his soybean crop on one end of the grain elevator and for all intents and
purposes re-purchasing the same or similar soybeans on the other end for
planting."  Characterizing this use
of the grain elevator as raising a "strawman," the brief states that
it is "disingenuous" for Farmer Bowman to argue that this activity "complied
with his contractual obligations under the Technology Agreement as written."

And with regard to the "self-replicating"
technology aspect of the Question Presented, the brief notes the multiplicity
of other uses for soybeans — including "crop
breeding, R&D, generation of herbicide registration data, and seed
production" (not to mention animal feed, human food, and other uses such as
in biofuels) put the lie to these allegations.  In view of this evidence, the brief "excuses" (albeit tongue
in check) Farmer Bowman's rhetorical excess regarding this characterization of
soybeans as "self-replicating," quoting Abraham Maslow that "if the only tool you have is a hammer, to treat everything as if it were a
nail."  The Psychology of Science: A Reconnaissance 1966.

BayhDole25's second argument,
regarding the importance of effective patent protection for agriculture, reminds
the Court that while this case may be one of "David vs. Goliath,"
should the Court reverse the Federal Circuit, this precedent in favor of Farmer
Bowman "would apply to any and all innovators, fundamentally altering the
existing business model for agricultural biotechnology — substantially curtailing
return on investment with profound adverse consequences for global development."  And the brief provides perspective:

In this broader context, for every
commercial farmer like Petitioner in the U.S. claiming harm from payment for
continued access to advanced seed technologies — where the eight fields at issue
in this case alone total 399 acres — there may be tens of thousands of
subsistence farmers in developing countries operating on a few hectares or
less, and relying on continued transfer of technology from innovative private
agricultural companies to meet agricultural challenges in the 21st century.  In
the grander scheme of global agriculture, Petitioner is a Goliath.

The benefits of biotechnology for agriculture
set forth in the brief include "increased agricultural productivity,
greater efficiencies in water usage and reduced need for chemical fertilizers
and/or crop protection products."  Also noted is that, before the biotechnology era in agriculture, most innovation
in agricultural methods was funded by governments and universities that created
a "global commons" of intellectual property.  Private funding, requiring "investment
of intensive resources over a long time-period, development of large genetic
databases and validation through field-testing" has "led to a
fundamental realignment, "with the private sector now investing
significantly more than the public sector in biotechnology R&D."  (The brief argues that this is a positive
outcome, in view of the advances in agriculture over the resulting time
period.)  The brief notes that the agricultural biotechnology environment
in Europe is "adverse," with consequently leadership by the U.S., which "has
become the engine for innovation and transfer of technology to partners in the
developing world."

The brief ends with further relating
the efforts of those, like Farmer Bowman, who attempt to avoid paying patent
licensing fees and royalties:

Compensation paid by Petitioner and
other American farmers to license advanced agricultural technologies like
Roundup Ready® soybeans, accordingly, are an important part of the social contract
supporting continued technology transfer needed for productivity gains and
poverty reduction efforts in developing countries around the world.  Petitioner's
and other similarly situated parties refusal to compensate Respondents for
continued use of the Roundup Ready® technology would upset the carefully
constructed balance of benefits fueling technology transfer globally,
potentially reversing hard-won gains of subsistence farmers in the developing world
and elsewhere.

In a word, perspective.

For additional information regarding this topic, please see:

• "Government Sticks to Its Guns in Bowman v. Monsanto Amicus Brief," January 28, 2013
• "IPO Files Amicus Brief in Support of Respondents in Bowman v. Monsanto," January 24, 2013