What could Bowman have done differently? He could have obeyed the law and respected Monsanto’s patent. I understand that this is not a popular opinion. It is not hard to see why. Nobody wants to feel that they are supporting a large and faceless corporation over an independent farmer. But after thinking about it carefully, I am forced to conclude that there was no legal argument Bowman could have advanced that would have worked in his favor.
The Supreme Court decided against him unanimously. And it was not difficult to predict that they would do so. Bowman appealed from a unanimous decision of the Federal Circuit. As they ably explained, “patent exhaustion” does not allow a person to produce copies of patented technology, even if he produces the copies by growing the seeds that were sold to him.
Things would be different, of course, if Monsanto had not explicitly told Bowman that he was not permitted to save seeds from the crops of his Monsanto-engineered plants. But they did tell him that. He was not taken by surprise—he just thought that he didn’t have to abide by this agreement. And with this in mind, I see really no reason why seed patents shouldn’t be just as enforceable as other patents. Monsanto has produced a useful product (and a product that we want to incentivize Monsanto to produce more of). It has produced this product with a novel scientific approach, which is what it is patenting.
Allowing Monsanto the patent does not make anyone else worse off than they would be if Monsanto had never produced the new crop in the first place. The only reason I have heard for opposing the patent is “nature shouldn’t be patentable”—but nature is not patentable. Monsanto is patenting its improvements, not what nature has produced.