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<TITLE>Mr McFarling was only saving seeds....</TITLE>
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<P><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">New York Times, November 2, 2003</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=4 FACE="Arial">Saving Seeds Subjects Farmers to Suits Over Patent</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">By ADAM LIPTAK</FONT></SPAN>
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<P><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">TUPELO, Miss., — Homan McFarling has been farming here all his life,</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">growing mostly soybeans along with a little corn. After each harvest, he</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">puts some seed aside.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">"Every farmer that ever farmed has saved some of his seed to plant again,"</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">he said.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">In 1998, Mr. McFarling bought 1,000 bags of genetically altered soybean</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">seeds, and he did what he had always done. But the seeds, called Roundup</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Ready, are patented. When Monsanto, which holds the patent, learned what</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Mr. McFarling had sown, it sued him in federal court in St. Louis for</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">patent infringement and was awarded $780,000.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">The company calls the planting of saved seed piracy, and it says it has won</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">millions of dollars from farmers in lawsuits and settlements in such cases.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Mr. McFarling's is the first to reach a federal appeals court, which will</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">consider how the law should reconcile patented food with a practice as old</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">as farming itself.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">If the appeals court rules against him, said Mr. McFarling, 61, he will be</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">forced into bankruptcy and early retirement.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">"It doesn't look right for them to have a patent on something that you can</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">grow yourself," he said.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Janice Armstrong, a Monsanto spokeswoman, said the company invested</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">hundreds of millions of dollars to develop the seed. "We need to protect</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">our intellectual property so that we can continue to develop the next wave</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">of products," she said.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Were farmers allowed to replant the seed, the company said in its appeals</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">court brief, "Monsanto would effectively, and rapidly, lose control of its</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">rights."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">That is because one bag of the patented seed can produce about 36 bags of</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">seed for use in the next growing season. The number grows exponentially. By</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">the third season, the single bag of seed could generate almost 50,000 bags.<BR>
Ms. Armstrong said that there are about 300,000 soybean farmers in the</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">United States, and that Monsanto has disputes with only about 100 of them a</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">year. Most disputes are resolved quickly and informally, she said. Farmers<BR>
here said the company's efforts to investigate the replanting of</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">saved seeds have been intrusive, divisive and heavy-handed. "They hired the<BR>
whole city of Tupelo's night police force," said Mitchell</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Scruggs, 54, who is a defendant in another saved-seed lawsuit. "They bought</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">a lot across the street from me for surveillance. They're spending all this</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">money on airplanes, helicopters, detectives, lawyers."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">"They told a federal judge that it wasn't a monetary issue," Mr. Scruggs</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">said over the roar of three cotton gins at his farm here. "They wanted to</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">make an example of me. They want to destroy me to show others what could</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">happen to them."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">In this respect, the seed lawsuits resemble the record industry's actions</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">against people who share music files on the Internet. There, too, the goal</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">is not primarily to recover money from particular defendants but to educate</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">the public, and perhaps to scare other potential offenders.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Ms. Armstrong acknowledges that Monsanto must walk a fine line. "These<BR>
people are our customers," she said, "and we do value them. But we</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">also have to protect our intellectual property rights."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Legal experts say Monsanto is likely to win its appeal, in part because Mr.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">McFarling signed a standard contract when he bought the seed. He said he</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">did not read the contract at the time and it had never occurred to him,</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">until Monsanto contacted him with a $135,000 settlement offer, that he had</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">done anything unlawful. He had paid about $24,000 for 1,000 bags of seeds,</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">including a "technology fee" of $6.50 per bag.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">The contract, which Monsanto calls a technology agreement, said buyers</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">could use the seed "only for a single season" and could not "save any seed</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">produced from this crop for replanting."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">One judge, dissenting in an earlier appeal that upheld an injunction</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">against Mr. McFarling, wrote that the boilerplate contract did not give Mr.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">McFarling a fighting chance.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">"The terms printed on the reverse of the technology agreement are not</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">subject to negotiation and Monsanto's billions of dollars in assets far</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">exceed McFarling's alleged net worth of $75,000," wrote Judge Raymond C.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Clevenger III of the United States Court of Appeals for the Federal</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Circuit. The same court is hearing Mr. McFarling's second appeal. "Even<BR>
an attorney reading the technology agreement might not understand</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">that it purports to subject one to patent liability in Missouri," where</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Monsanto is based, Judge Clevenger continued. Someone versed in the</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">specialized decisions collected in law books might have understood it, he</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">wrote, "but we may presume that few feed stores stock the Federal Reporter</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">on their shelves."</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Lawyers for the farmers here have worked hard to frame defenses that might</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">work in court. Mr. Scruggs, for instance, promises to attack the validity</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">of the patents themselves and to show that the company's practices amount</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">to a violation of antitrust laws.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Mr. Scruggs said that unlike Mr. McFarling, he did not sign the technology</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">agreement. Even without it, though, legal experts said the case against him</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">was strong. The idea that planting saved seed amounts to patent</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">infringement, they said, follows inexorably from two United States Supreme</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Court decisions allowing patents for life forms.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Monsanto's soybean seeds account for at least two-thirds of the American</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">soybean harvest. The seeds are called Roundup Ready because they are</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">resistant to a popular herbicide called Roundup, which is also a Monsanto</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">product.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Mr. McFarling and Mr. Scruggs have been forbidden by court orders to use</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Monsanto's products. They said that conventional seed was perfectly good,</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">but that effective herbicides had become hard to find.</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">Mr. Scruggs said the courts should find a way to weigh traditions almost as</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">old as humanity against fostering high-technology innovations. "It's a God-given<BR>
right that farmers were given when they were born to save</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">these seeds," he said. "All we are is farmers trying to scrape a living out</FONT></SPAN>
<BR><SPAN LANG="de"><FONT SIZE=2 FACE="Arial">of this dirt."</FONT></SPAN>
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