"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