Bloomberg News | By Susan Decker | December 4, 2001
LINCOLN, Nebraska - Linn Debuhr said he was following traditional farming practices when he planted soybean seeds harvested from Monsanto Co.'s genetically modified plants.
Now he and other Nebraska farmers are being sued by the company, which claims the farmers violated its patents by planting second-generation seeds, instead of buying new seeds each year. Monsanto's seeds are for plants that don't die when exposed to its top-selling herbicide, Roundup.
Mr. Debuhr, who grew soybeans on 244 acres on his farm in rural Nemaha County, faces a demand from Monsanto for $17,000. "It's how my dad farmed," Mr. Debuhr said. "We didn't do it for a long time with these Roundup beans. Then we watched our neighbours do it, and we thought they'd never bother us. We found out different."
Monsanto, the biggest developer of genetically engineered crops, has filed about 20 suits nationwide against farmers over its seeds for the herbicide-resistant plants. The company, based in St. Louis, Missouri, which had $5.49 billion in sales last year, says it tries to negotiate with farmers caught using the soybean seeds.
"If we get information that someone is holding back the patented seeds, we have an obligation to go out and investigate," said Monsanto spokeswoman Lori Fisher. "It's not fair to the hundreds of thousands of growers who are abiding by the agreements and are paying for new seeds each year."
The seeds are popular with U.S. farmers because of the effectiveness of Roundup, which Monsanto says kills any plant it touches. The company's seeds were planted on about 72 per cent of the 75.4 million soy acres sown this year, based on figures from Monsanto and the U.S. Agriculture Department.
When the soybean seeds were introduced in 1996, Monsanto set up an educational program to tell farmers about the plants and its patents. Bags of the seeds included warnings to farmers not to use any second-generation seeds, the company said.
Ms. Fisher said she wasn't sure what brought Monsanto investigators to Nemaha County, where the largest town, Auburn, has about 3,000 people and is about 110 kilometres southeast of Lincoln, the state's capital.
"This is a farm community, we're just getting by," said Mr. Debuhr, who said he knows of four other growers who were sued. "I think they're going to break us before it's over."
"There are a few big farmers around here, but they don't go after them. We're trying to survive and it's getting harder to get by," he said.
The Nemaha County suits, filed last week in U.S. District Court in Lincoln, Nebraska, come as the agriculture industry awaits a ruling from the U.S. Supreme Court on hybrid corn plants and their resulting seeds.
The nation's highest court is considering whether to grant full patent protection to the hybrid corn seeds or let farmers and farm-supply companies resell or reuse the seeds. During oral arguments in October, some justices indicated they might roll back the patent protections.
"I'm trying to think of a machine that replicates itself, and I can't, so maybe that indicates that plants are different," Justice Anthony Kennedy said during the Oct. 3 hearing.
Even if the high court rules in favour of the farmers and their suppliers on hybrid corn plants, Monsanto says it won't affect the protections for genetically modified seeds.
Patents for genetically modified seeds typically include descriptions for the plants, the genes and the process to create the new seeds, said Jeffrey Kushan of the law firm Powell Goldstein Frazer & Murphy in Washington.
Mr. Kushan filed a brief on behalf of biotechnology companies in support of full patent protection.
Even if the corn farmers prevail, "the things that you do to make the plants transgenic, all that remains patentable," Mr. Kushan said. "It wouldn't be fatal for (Monsanto's) ability to enforce the patent rights against farmers using the seed, reusing it, harvesting and growing it."
Most soybean seeds grown in the U.S. are genetically modified. In contrast, most corn in the U.S. is from hybrid plants, because genetically modified plants haven't been approved for human consumption.
Agricultural-products companies such as Monsanto and DuPont Co.'s Pioneer Hi-Bred International say enforcement of the patents preserves their ability to make a profit after spending money to research and develop new disease- and pest-resistant plants.
"There's a long history that an invention involving a biotech-patented seed should be protected because of the cost and innovation involved in creating the seeds," Ms. Fisher said.
Monsanto stands to lose Mr. Debuhr as a customer.
"Now we'll plant conventional beans and just not use their chemicals," Mr. Debuhr said. "Roundup really works good. Guess it's just a mistake we made -- a very expensive mistake."
