Lawyers further explain farmer v. Monsanto seed case
On Oct. 5, 2012, the U.S. Supreme Court granted review in Bowman v. Monsanto, a saved-seed case that includes questions of patent exhaustion and self-replicating technologies — and has the potential to impact multiple industries.
Bowman purchased Roundup Ready soybean seed from a licensed source and signed a Technology Agreement agreeing, among other things, to use the seed for a single season commercial crop, not to save seed and not to replant the seed. Bowman did not breech the Agreement.
While he grew authorized seed in a first crop, Bowman also grew a second crop of soybeans from seeds purchased from a commodity grain elevator. He tested the crop to confirm that the commodity seed was largely Roundup Ready® seed and grew the second crop using glyphosate-based herbicide, which is compatible with Monsanto's herbicide resistant Roundup Ready seed. In subsequent years, he saved the seed from the second crop and replanted the second crop with the saved seed.
Monsanto sued Bowman in Indiana District Court for patent infringement, alleging infringement of two U.S. patents related to Roundup glyphosate-based herbicide and resistant Roundup Ready soybeans. (US Patents 5,352,605 and RE39, 247E). The ‘605 patent issued in 1994 with claims directed to plants and chimeric genes containing a CaMV (35S or 19S) promoter and a structural gene heterologous to the promoter.
The ‘247E patent issued in 2006, with claims to DNA molecule comprising a promoter, structural sequence and a 3' non-translated poly-adenylation site, and includes claims where the structural sequence encodes an EPSPS resistance sequence. Additional claims recite plant cells, seeds and methods that employ the DNA molecule. The district court granted summary judgment of infringement with damages to Monsanto. Bowman appealed to the Federal Circuit.
On appeal, Bowman asserted the doctrine of patent exhaustion, arguing all rights to patented seeds placed in the grain elevator as undifferentiated commodity seed are exhausted when sold to downstream purchasers, under the Supreme Court's decision in Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008). According to Bowman, under Quanta, each seed sold is a substantial embodiment of all later generations, whereby the exhaustion doctrine encompasses the progeny of seeds and other self-replicating biotechnologies. Analogizing to the Supreme Court's disapproval of any categorical elimination of the exhaustion doctrine to method claims, Bowman asked the Court to similarly reject the effective elimination of the exhaustion doctrine for self-replicating products. Monsanto v. Bowman, Fed Cir 2012 (slip opinion at page 10).
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