[Gen-Streitfall] Mr McFarling was only saving seeds....

[Sabine]

New York Times, November 2, 2003
Saving Seeds Subjects Farmers to Suits Over Patent
By ADAM LIPTAK

TUPELO, Miss.,  — 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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