patentYesterday, the U.S. Supreme Court heard oral arguments in Bowman v. Monsanto Co. The defendant-appellant in the case, Vernon Hugh Bowman, a farmer in Indiana, appealed from the judgment of the U.S. Court of Appeals for the Federal Circuit, in Monsanto Co. v. Bowman 657 F.3d 1341 (Fed. Cir. 2011).

Monsanto Company (“Monsanto”), an agricultural business, had sued Mr. Bowman for alleged infringement of its proprietary soybean seeds when he unlawfully replanted second-generation seeds that were the product  of genetically-altered soybeans purchased from the company. The Federal Circuit affirmed the judgment of the U.S District Court for the Southern District of Indiana and found Mr. Bowman liable for patent infringement.

In particular, Monsanto does not allow growers to unlawfully replant any second-generation seeds that contain its patent. They are required to buy new seeds each year. Of primary focus is whether a patent owner’s right to control the use of subsequent generations of its product, such as seeds, especially if it is self-replicating, is relinquished after an authorized sale.

Pursuant to the exhaustion doctrine, as well as Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008), the authorized sale of an article, substantially embodying the patent, eliminates a patent owner’s exclusive rights to control the use of its product. Also, the practice of the patent must be its reasonable and foreseeable use.

Mr. Bowman uses the exhaustion doctrine as an affirmative defense. He alleges that his purchase from a grain elevator was an authorized sale, thereby exhausting Monsanto’s proprietary rights with respect to all generations of the seeds. Also, the only reasonable use of the soybeans is to  replant them.

Yet Monsanto argues, however, and the Federal Circuit agreed, that under Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006), and Monsanto Co. v. McFarling, 302 F.3d 1291 (Fed.Cir.2002), the right to use the product does not include the right to make unauthorized copies. If exhaustion did occur, it was limited to the original seeds that were purchased from Monsanto, and did not extend to any subsequent generations containing the patent. Monsanto never sold the actual seeds that Mr. Bowman planted.

Finally, according to Monsanto, it needs patent law to protect its research and investments.

In all, the Supreme Court is not likely to issue a ruling in this case until June. It is an issue of first impression for the court.

This issue has become particularly problematic to small farmers across the United States.  For more information about the practical impact of the issue, watch Food, Inc., information about (available on Netflix) the movie and a trailer, are available here.  Of course, Monsanto has its own take on the movie as shown here.

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