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Jessica Chesher

Managing Editor

Innovation eReview
Bowman v. Monsanto Co.

Supreme Court Case involving: patents, bioengineering, biotechnology, agriculture industry

Background: Farmers who buy seeds from Monsanto, such as the soybeans containing the Roundup Ready gene which makes plants immune to the herbicide Roundup, must sign an agreement with the company not to save the seeds. This ensures that farmers who want to use the hugely popular technology, used in more than 90 percent of the nation’s soybeans, must each year buy new seeds from Monsanto.

In this case a 75-year-old Farmer, Vernon Bowman, bought and planted patented seeds from Monsanto for his first crop. He then went on plant a late season crop, going to a grain elevator where soybeans are sold typically for feed, milling and other uses but not as seed. As the majority of farmers use Monsanto’s patented seed technology it was likely that the seed they sold to the elevator would also contain the Roundup Ready gene even though it wasn’t identified as such. The second crop was successful and Bowman kept the seed generated to be used the following year, a pattern he repeated until 2007 when Monsanto sued for patent violation.

Opinion Summary: The Court agreed unanimously with Monsanto that the seed patent requires farmers to buy from Monsanto each year in order to utilize their technology. Bowman’s defense of patent exhaustion, that the initial authorized sale of a patented article terminates patented rights to that article and gives the purchaser the right to use or sell it, was rejected. The Court explained, “However, the doctrine restricts the patentee's rights only as to the "particular article" sold, id., at 251; it leaves untouched the patentee's ability to prevent a buyer from making new copies of the patented item. By planting and harvesting Monsanto's patented seeds, Bowman made additional copies of Monsanto's patented invention, and his conduct thus falls outside the protections of patent exhaustion.”

For further review.

Implications: Many people were wondering whether licensing questions would be addressed that could be relevant to the software industry but in the end little was said. Overall, nothing was really changed for the biotech industry and their protection for GMO products was reinforced.

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