By Kevin
E. Noonan —

The "conventional
wisdom" surrounding the Bowman v.
Monsanto case now before the Supreme Court on certiorari is that it is "David v. Goliath," the
salt-of-the-earth farmer versus the corporate monolith, and an example of the
traditional commoditization of American values by purveyors of "Frankenfood"
looking merely to maximize shareholder profit.  So it may come as a shock (to some) that a group of farmers and farmers'
organizations have filed a brief in support of Monsanto.  These include the American Soybean
Association, Illinois Soybean Association, Indiana Soybean Alliance, Iowa
Soybean Association, Kansas Soybean Association, Kentucky Soybean Association,
Michigan Soybean Association, Minnesota Soybean Growers Association,
Mississippi Soybean Association, Missouri Soybean Association, Nebraska Soybean
Association, North Dakota Soybean Growers Association, Ohio Soybean
Association, Tennessee Soybean Association, Virginia Soybean Association,
Wisconsin Soybean Association, National Corn Growers Association, National
Association of Wheat Growers, American Sugarbeet Growers Association, and
Growers For Biotechnology.  Maybe these
farmers' groups know something other than what "everybody knows."

The
groups' bona fides are set forth in the Statement of Interest portion of the
brief:

American Soybean Association (ASA) is the
national trade association representing U.S. soybean farmers on domestic and
international issues of importance to the soybean industry.  ASA's advocacy and
representational efforts are made possible through the voluntary membership of approximately 22,000 farmers in 31 states.  ASA represents the interests of 280,000
American soybean farms.

(emphasis added).

The other
soybean groups are aligned and support the ASA's position, not only on this
brief but also in support of biotechnology in agriculture.  The other food grower groups (National Corn
Growers Association, National Association of Wheat Growers, American Sugarbeet
Growers Association, and the Growers for Biotechnology) represent their
respective food growers.

Their
brief uniquely reviews the history of soybean production in America and states uncomfortable facts and inconvenient truths about how soybeans are
actually produced and the role of agricultural biotechnology in food production.

The
brief identifies weeds (not patents) as "the most significant economic
challenge to global food production" and that "[i]mprovements in weed
management are critical to increasing crop yields."  Amici pierce the canard that biotechnology as
applied to agriculture is unnecessary or deleterious, noting that "[a]lthough
soybeans and other crops have been cultivated for centuries, advances in plant
genetics were historically stifled by a lack of incentives to invest in new
technologies and breeding techniques."  In contrast (according to the
brief), "enormous progress" has been made since passage of the Plant
Variety Protection Act in 1970 and "[g]enetic innovation in Soybeans"
increased "like Jack's magical beanstalk" (i.e., exponentially) after the Supreme Court's decision in Diamond
v. Chakrabarty.  This "prolific record in developing new
crop varieties" depends on patent protection, amici contend, because without it "seed
and biotechnology companies would not have undertaken the expensive and
time-consuming research necessary to improve existing plant technology."  These assertions are supported by facts,
including that:

Since 1980, total domestic soybean production
has increased 96% and yields per acre have increased 55%.  Soybean production
has also become more environmentally friendly.  On a per bushel basis, the land
needed to produce a bushel of soybeans declined by 35%, soil erosion decreased
66%, irrigation water applied declined by 42%, fuel consumption decreased 42%,
and greenhouse gas emissions declined by 41%.

For at
least these reasons, these amici contend that "[u]pholding
the [Federal Circuit's] decision below will ensure that technological
innovation in crop breeding and genetic traits continues unhindered, thereby
leading to the development of more productive, manageable, and
environmentally-sustainable varieties" while "permitting unrestricted
replication of soybean biotechnology will have a wide variety of harmful
effects on Amici, other farmers, and society as a whole."

The brief then provides some
historical context.  First, though, some
statistics:  soybeans are grown on more than 280,000 farms encompassing 77
million acres in 31 states (it is the "second most-planted field crop"
in the country), with sales of $37 billion (18% of agricultural sales).  In addition to benefits of soybean sales in
the U.S., soybean production is a major export crop, amounting to $21.5 billion in 2012
(18% of all agricultural exports).  The
effects of Monsanto's soybeans on the soybean economy are illustrated in the
brief by noting that soybean exports increased from 882 million to 1.3 billion
bushels since 1996 (when Roundup Ready® seeds
were first introduced).

The brief follows these statistics
from today with a brief history of soybean cultivation and attempted
improvements before and after Monsanto developed its Roundup Ready®
seeds.  Early efforts were undertaken by
the U.S. government, starting (paradoxically) with the Patent Office, which
distributed seeds to U.S. farmers.  These
"free seed" programs eventually came under the auspices of the U.S.
Department of Agriculture and lasted until 1934.  One consequence of this government largess,
according to amici, was that "[e]arly seed breeders had little incentive to make
costly investments in developing more productive plants because the free seed
program crowded private breeders from the marketplace."  These disincentives were exacerbated by the
lack of patent protection, say amici, due in part to the inability to prevent farmers from saving
seed for replanting.  As a result, the
brief cites "little progress" being made to increase crop yields.

Fortuitously, the exit of the
government from seed distribution was accompanied by the development of hybrid
corn, which "substantial[ly] increase[d] yields" and coincidentally
investment was not impeded because hybrid corn could not be replanted.  While commercial development of hybrid corn
thus did not depend on patent protection the same is not true for "self-pollinating"
crops such as wheat and soybeans (and these crops were not capable of protection using
alternative forms of intellectual property protection like trade secret).  And although the PVPA afforded some level of
protection for plant breeders, exceptions that permitted seed saving provided
"soybean breeders [with] little incentive to invest resources in
developing new varieties."

The combination of the Court's Chakrabarty decision in 1980 and J.E.M.
Ag Supply v. Pioneer Hi-Bred Intern., Inc.,
534 U.S. 124, 131-32 (2001), provided these much-needed incentives.  "Breeders responded vigorously to these
new assurances of intellectual property protection," say amici, supporting this assertion with
the following statistics.  Agricultural
genetic research spending increased from $146 million in 1979 to $305 million
in 1982, by 1994 had risen to $634 million, and by 2010 amounted to $2
billion.  The focus of most of this
research has been on "seed and genetic trait development" and
intellectual property protection (both under the PVPA and the Patent Act) "provided
incentives for private seed developers and genetic researchers to create
innovative and highly productive crop varieties and genetic traits."  Publically funded research, conversely, "leveled
off in the 1970s and began to decrease by the mid-1990s."

Far from being imposed on
unwilling farmers, the brief explains that "[a]lthough Roundup Ready® seed
is more expensive than conventional seed, soybean farmers readily adopted
glyphosate-resistant technology because it simplified weed management"
(recall that amici asserted earlier in their brief that weed management poses the greatest obstacle to
successfully increasing crop yields).  The
statistics again bear out these statements: 
two years after Monsanto introduced their seed, 38% of farmers had
adopted it, and this percentage rose to 54% by 2000 and to 93% by 2012.  These statistics illustrate not that farmers
did not want to plant Roundup Ready® seed but precisely the opposite:  Monsanto's
seed provided clear advantages that justified their increased cost.

Now is not the time for this trend
to be inhibited by reducing patent protection for agricultural biotechnology, amici argue.  While these improvements have been
impressive, genetic engineering of crop plants is "a relatively new
phenomenon" and there are other desirable traits (including "saturated
fat and trans fat levels, increased Omega-3 levels, improved yields, and
genetic resistance to insects and pervasive diseases") now being developed (by
companies like Bayer, Pioneer, Dow, and Syngenta in addition to Monsanto).  The brief also notes that soybeans are "hardly
the only crop benefitting from biotechnology research," mentioning several
crop plants where genetic variants with traits including "resistance to
drought, stress, and a wider spectrum of herbicides, with a higher nutritional
content, and which more efficiently utilize nitrogen fertilizer" are in
development.  Accordingly:

There can be no doubt that if intellectual
property protections remain in place, biotechnology will continue to play a
substantial role in crop improvement.  These advances are largely premised upon
the continuation of private research conducted by seed breeders.  Absent utility
patent protection, little incentive will exist for biotechnology companies to
conduct research.

As in other briefs, the
application of biotechnology to food crops also promotes "environmental
sustainability," the brief asserts.  Lest there be any doubt, these amici remind the Court that "[s]ustainability
is not merely a buzzword that receives lip service from the agricultural
community" but is a necessity to enable demand for food to be met
currently while "ensuring that food producers [will be able to] meet
future food demands."  Between
increased global population and decreased availability of arable land, "[f]eeding
a growing world with dwindling resources requires the adoption of a
comprehensive approach to ensure this daunting challenge can be met."  Conventional methods of food production not
only cannot meet these needs but also involve other practices (such as "multiple
passes of primary and secondary tillage" and "the use of a variety of
herbicides to control weeds") that have their own environmentally
deleterious effects.  The introduction of Monsanto's Roundup Ready®
seed actually reduced excessive tillage practices and thus reduced soil
erosion, water pollution caused by pesticide runoff and even greenhouse grass
production (because reduced tillage entails reduced use of diesel fuel for
tractors).  Finally, the active
ingredient in Roundup®, glyphosate, is "'practically
non-toxic by ingestion' and noncarcinogenic, making it safer for applicators
seed," in contrast to alternative herbicides that "EPA
estimates are 3.4 to 16.8 times more toxic to humans."

This portion of this amicus brief concludes by discussing the
"unorthodox practice" of replanting commodity seed.  While the reasons are multiple, the brief
mentions protections against the spread of weeds from the commodity seed and
regulations preventing grain elevators from certifying that their soybeans can
be sold as seed (like the Indiana Seed Law and other "Federal and state
laws and regulations").  As a
result, imparting the Court's imprimatur to Farmer Bowman's actions and
resulting "widespread adoption" of this scheme would "place elevators in the untenable position of serving as de facto state
inquisitors regarding the intended uses of grain purchased by their customers."

The brief then sets forth its
argument for affirmance, these arguments being consistent with other amici and Monsanto in arguing that
Farmer Bowman's replanting amounted to unauthorized reconstruction of a
patented article and that Monsanto's patent rights were not exhausted with
regard to the replanted seed.

The brief ends with the following:

In 1836, the State Department instituted the
free seed distribution program to obtain the best seed technology for America's
farmers in order to produce food for the nation.  The free seed program was
terminated because seed technology was not keeping pace with society's demands.  During 2012, the State Department re-affirmed its support of agricultural
biotechnology as a way to produce the food needed by a growing world
population.  In order to meet this challenge, "more food will need to be
produced in the next 50 years than has been produced during the last 10,000
years combined."  Agricultural biotechnology is a "proven means of
building global food stores."  Little incentive exists for innovation
unless seed research and development is afforded intellectual property
protection.  Soybean, corn, wheat and sugar beet farmers can help achieve these
goals, but will require access to continued improvements in seed technology.

Amici
provide a unique perspective based on the experience of real farmers and their
organizations concerned with the future of American agriculture.  With luck, the Supreme Court will be
listening.

For additional information regarding this topic, please see:

• "BayhDol25 Files Amicus Brief in Bowman v. Monsanto," January 30, 2013
• "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