Monday, May 13, 2013

Bowman Bowed By Monsanto

The United States Supreme Court has given farmer Vernon Bowman good reason to become triskaidekaphobic.  For, on May 13, 2013, the Court sided decisively with agricultural biotechnology giant Monsanto Company, holding that Bowman had violated Monsanto's patents claiming Roundup Ready soybeans.  As the Court fashioned them, here are the facts of the case:
Respondent Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that permits farmers to plant the purchased seed in one, and only one, growing season. Growers may consume or sell the resulting crops, but may not save any of the harvested soybeans for replanting. Petitioner Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives  the purchaser of a patented article, or any subsequent owner, the right to use or resell that article.
Monsanto prevailed both in federal District Court and in the Court of Appeals for the Federal Circuit.  Now, the Supreme Court has affirmed the decisions of the courts below, holding that
Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.
Owners of patents claiming self-reproducing inventions ("SRIs"), such as genetically-engineered seeds, cells, and organisms, may now breath a sigh of relief.  To celebrate its famous victory, Monsanto published a press release entitled
"Supreme Court Ruling Supports Breakthrough 21st Century Technologies, Ensures That Patent Law Will Protect Continued Advancement In Agriculture Products".
A win for Bowman would have meant carnage for the value of agrobiotechnology patent portfolios.  Instead, the Court has reaffirmed the value of intellectual property rights in SRIs, potentially allowing patent rights coterminous with the continued existence of any patented biological lineage.  Furthermore, unlike its recent decision in Kirtsaeng v. John Wiley & Sons, where it strengthened the legal defense of exhaustion in the copyright context, in Bowman v. Monsanto the Court declined to apply exhaustion principles in the SRI patent context.  Perhaps too much exhaustion doctrine in a single term has exhausted the Court. 

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