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Monday, October 15, 2012

Patent case pits lone farmer against corporate giant Monsanto

Although patent law may seem dry to many, the Supreme Court will hear argument in Bowman v. Monsanto Co., a case that could have substantial consequences for small farmers and patented technology. Monsanto, a corporate Goliath, sued a farmer for patent infringement of its genetically modified seed, even though the farmer had no way of knowing that the seeds he purchased had been comingled with Monsanto’s genetically modified seeds. Vernon Bowman’s offense was to plant seed purchased from a local grain elevator, which happened to include the progeny of Monsanto’s patented seed.

Supreme Court precedent holds that once a purchaser buys a patented product through an authorized sale, the right to enforce the patent against the purchaser is exhausted. Under patent law, a purchaser can use the purchased product for its reasonable and intended use or for reselling to others without liability to the patent owner. In this case, patent exhaustion would seem to occur after the authorized seller of Monsanto’s genetically modified seed sold that seed to a farmer. However, the Federal Circuit held that patent exhaustion does not apply to a self-replicating product like Monsanto’s genetically modified seed. The court reasoned that because the seed self-replicates, a farmer that plants the progeny seed is in effect making patented genetically modified seed rather than using the seed.

This case is significant for at least two reasons. Although in recent years the Federal Circuit has narrowed patent exhaustion to anti-trust cases, the Supreme Court has never specifically addressed the patentability of self-replicating technology. Second, a Monsanto win would effectively give Monsanto a monopoly over an entire crop and bar farmers from the common practice of purchasing commodity seed from a local grain elevator and saving the progeny seed for the next season. The risk of purchasing comingled seed would deter farmers from purchasing low-cost progeny seed and force them to purchase only Monsanto’s patented seed each year.

For more about this upcoming case, take a look at David Kravets’ article in Wired, or SCOTUSBlog’s case page. Stay up-to-date with AFJ’s Supreme Court Docket for a review of this term’s significant cases.

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