Play-uhs Gonna Play: Monsanto Wins Patent Battle, But Fails To Rock A Puffy Coat Like Bowman

I don’t know why it affected me so personally, but I was really sad to see Vernon Bowman lose the soybean case to Monsanto.  I guess he’s like the Grandpa I never had growing up because we lived 2000 miles away from either set of grandparents as a result of family feuds my father’s job.  But if I could have picked a grandpa to be mine, it would’ve been him, with his cool tractor and mustache, and even cooler dog.

Aaron P. Bernstein for The New York Times

Aaron P. Bernstein for The New York Times

Alas, Monsanto’s attorneys were able to convince the Supreme Court that my proxy Granddad is an intellectual property thief because he planted soybeans and they (*GASP*) grew in the ground, as seeds are wont to do.

I read about the decision and felt compelled to complain.   First of all, I need to get out more because I didn’t realize that Monsanto actually manufactured the RoundUp product and gave exclusive rights to sell it to Scott’s, who distributes the product.  So what you’re telling me is that you’ve made a pesticide, and then genetically engineered a soybean that is resistant to it?  Maybe I don’t understand science even though I watch The Big Bang Theory religiously, but why couldn’t you just have created a pesticide that only killed, you know, pests to begin with?  It seems a little double-dip-ish to create a solution to a problem that creates another problem that you then create another solution for.  (If you’re an Aggie or a patent troll, you might have to read that last sentence twice.)

Nevertheless, here’s what happened:

Vernon Bowman, an Indiana farmer, thought he had come up with a clever way of avoiding the cost of paying Monsanto’s licensing fee. Bowman bought soybeans that were sold to be consumed, not planted, from a grain elevator, planted them, sprayed them with Roundup Ready, and then planted the seeds from the surviving plants.  (Such seeds were of course from Roundup Ready plants, since they had survived the spraying of Roundup).

OK first of all?  Don’t talk about my proxy Granddad like that.  “Thought he had come up with a clever way of avoiding the cost of paying Monsanto’s licensee fee.”  Is that really what he did?  It was on purpose, what he did?

You know what?  Maybe it was.  But what I’d like to know is what are Monsanto’s damages from this guy?  Because I find it extremely difficult, if not impossible, to believe that My Granddad’s Mr. Bowman’s crops have hurt the sale of Monsanto’s RoundUp ready seeds in any substantial way.   Now, if he had planted the soybeans that were meant for consumption rather than actual seeds, spent the time to plant them and harvest derivative RoundUp ready seeds, and marketed and sold them as an alternative to Monsanto’s patented first-generation seeds, then I might be more willing to sit down with him over a glass of sweet tea and possibly a splash of whiskey and say “Grandpa?  You really shouldn’t do that.”

But for him to legally purchase soybeans, plant them, take seeds from those plants and plant them, and for those seeds to have inherited the RoundUp resistance of the original bean seems way on down the food chain and seriously, how much did it cost Monsanto to sue this guy anyway?  Did anyone but the lawyers even win any money?  Wait, don’t answer that.  The answer is always “NO.”

Either way, the personalities of both monolithic Monsanto and sweet farmer Bowman are what kept this case in the news.  We know it cannot possibly be about the details of the doctrine of patent exhaustion because OMG how boring can you get?  Who’s reading a bunch of articles about that?

No, it’s the whole Play-Uhs Gonna Play doctrine that kept this thing exciting.  Which brings me to the second main point of this whole post:  even though Monsanto won the war, no one rocks a puffy coat like Mr. Vernon Bowman:


Puffy coat, for the win.
(J. Scott Applewhite/AP)

Put that in your Supreme Court docket and smoke it, folks.

Just sayin’,


Play-uhs Gonna Play

(Here I go again, repeating myself myself…)

I find the most interesting piece of the patent troll puzzle to be the players it brings out.  Taking a stroll down memory lane, you find this seriously outstanding dude.  If ever there was a time to bring out that infamous Jay-Leno-to-Hugh-Grant line, it’s now:  “What the hell were you thinking??”

Probably some of these details are wrong because  I am loathe to look them all up on a Wednesday morning I don’t have a fact checker, but basically Scott Harris held some patents.  While working as an attorney for Fish & Richarson, he licensed out these patents to trolls who would then assert them against clients of his own firm.  You need to be careful walking around after following that circular logic…dizziness leads to falls.

Somehow, I suspect he didn’t get a bonus for being a rainmaker.

Patent law appears to bring out the ugly in everyone.  And as I’ve mentioned before, it matters who the players are.  My new favorite person in this arena is one Mr. Bowman, of Monsanto v. Bowman fame.  Which, interestingly, seems to be styled in reverse half the time.  I don’t get it. ??

What you have here is a case about seeds.  Soybean seeds.  You know that RoundUp stuff you buy at Home Depot to spray on the weeds in the cracks on your driveway?  Well, Monsanto bred a resistance to it in their soybean seeds so that you can spray for the little buggers but not kill the soybean plant. And they have patented the…seeds?  The process of making them RoundUp resistant?  I’m not sure which, but I’m sure it doesn’t matter  because the point is that they sued, among others, a sweet farmer who bought second-generation seeds from a grain seller and has quickly found himself accused of patent infringement.  Take a look:

Aaron P. Bernstein for The New York Times

Aaron P. Bernstein for The New York Times

Who are we kidding here?  Look how adorable that man is, and he even has his dog with him.  A Grandpa and a dog, you’re going to sue that?  You are if you’re Monsanto.   You couldn’t get much drier subject matter if you combed the Sahara desert, yet this story is now everywhere.  I myself even said before that no one was hyping it because it’s about seeds and didn’t have a cool name associated with it.

Enter 70+ year old Bowman and you’ve got yourself a story.  Why?  The players involved.  It’s easy to care about who Monsanto sues when it’s a sweet farmer who defended himself by researching the law at a library because he doesn’t even have a computer.  Tell me that’s not good press!  And then he busts out the quotes like this and the story all but writes itself:

“I was prepared to let them run over me,” Mr. Bowman said, “but I wasn’t getting out of the road.”

Goliath, meet David.

So once again we have a situation where the people are what make it interesting.  What if Ray Niro was a sweet, kind, bespectacled man who had asked kindly could his name please not be used in vain when discussing non-practicing entities whom he happens to represent?  A certain blog still exists then, now doesn’t it?  Niro may or may not be bespectacled but he most certainly is not known for his kind demeanor so the fists started to fly and ZOINKS!  Houston, we have a problem.

What would be super terrific would be to track not only patent troll behavior at the company level, but to start naming names.  Build in a little personality profile of some of the biggest players working for the biggest trolls and see if you can’t use that information to make better informed decisions on how to handle nastygrams.  Also, take a look at the law firms on both sides of the aisle and profile the attorneys.

There’s personality gold in them thar hills, if only you track it and mine for it.

Just sayin’,