Monday, May 13, 2013

Bowman v. Monsanto: Farmer Cannot Endlessly Replicate RR Soybeans

The United States Supreme Court has held that an Indiana farmer cannot plant Roundup Ready (RR) soybeans purchased from a grain elevator (or "commodity soybeans") without violating Monsanto's RR patent. (Read prior post: Indiana Farmer Takes Monsanto to Supreme Court).  Justice Kagan wrote the opinion, which the Court summarized as follows:

Under the patent exhaustion doctrine, “the initial authorized sale of a patented article terminates all patent rights to that item,” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625, and confers on the purchaser, or any subsequent owner, “the right to use [or] sell” the thing as he sees fit, United States v. Univis Lens Co., 316 U. S. 241, 249–250. 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. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once.

Bowman argues that exhaustion should apply here because he is using seeds in the normal way farmers do, and thus allowing Monsanto to interfere with that use would create an impermissible exception to the exhaustion doctrine for patented seeds. But it is really Bowman who is asking for an exception to the well-settled rule that exhaustion does not extend to the right to make new copies of the patented item. If Bowman was granted that exception, patents on seeds would retain little value. Further, applying the normal rule will allow farmers to make effective use of patented seeds. Bowman, who purchased seeds intended for consumption, stands in a peculiarly poor position to argue that he cannot make effective use of his soybeans. Bowman conceded that he knew of no other farmer who planted soybeans bought from a grain elevator. In the more ordinary case, when a farmer purchases Roundup Ready seed from Monsanto or an affiliate, he will be able to plant it in accordance with Monsanto’s license to make one crop. 
Ultimately, the Court's decision turned on Bowman's multiple replications of the RR soybeans. Although a person may buy a patented item and resell it to someone else, a person cannot buy a patented item, reproduce multiple copies, and then sell it to someone else.  To the Supreme Court, that's exactly what Bowman did here.

Read the entire opinion, click here:  Bowman v. Monsanto

By Todd J. Janzen

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