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A few weeks ago, a 75-year-old farmer from Indiana who was sued for using the progeny of patented soy beans found himself before the Supreme Court. Vernon Bowman originally represented himself against seed giant Monsanto when he was sued by the company four years ago. By the time he reached the Supreme Court late last month, he was represented by a big law firm donating its time.
The issue was whether Bowman infringed on Monsanto’s patent when he planted the offspring of the company’s Roundup Ready soybeans. Bowman argued that these second-generation seeds were not covered by Monsanto’s patent because the doctrine of patent exhaustion, a doctrine that limits the extent to which patent holders can control the use of a patented product after an authorized sale, allowed him to do what he liked with products he obtained legally.
Monsanto expressed concern that a single acre of soybeans could produce enough seeds to plant 26 acres the next year. If a ruling allowed farmers like Bowman to save seeds from one year to plant the next, Monsanto argued it would “devastate innovation in biotechnology.” Monsanto said it spends roughly $1.5 billion a year on research and development and would not be able to recoup those costs if patent law does not cover seed progeny.
A district court in Indiana sided with Monsanto and awarded over $84,456. The Court of Appeals for the Federal Circuit affirmed, saying that by planting the second-generation seeds, Mr. Bowman had created newly infringing articles. The Supreme Court agreed to hear the case, to the surprise of the biotechnology industry – Hans Sauer, deputy general counsel of the Biotechnology Industry Organization said, “We thought this question was long decided.”
The key question before the Supreme Court was whether the doctrine of patent exhaustion applied to seeds and self-replicating technologies. At a lopsided oral argument, Bowman’s lawyer was bombarded with critical questions from almost every justice while Monsanto’s lawyer was allowed to talk uninterrupted for long stretches. One commentator suggested that Bowman’s lawyer had a bad day and that it appeared that the Court was looking for a way to dispose of the case in the most elegant way possible, to avoid a broad ruling that would have expansive economic effects. At one point, Chief Justice Roberts asked, “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”
Given the skepticism the Court seemed to express toward Bowman’s case, it seems likely his chances of winning are slim. Nevertheless, one must wonder why the Court agreed to hear the case in the first place. Did the Court feel something merely needed clarification? Or was it was planning on announcing a groundbreaking decision about patent rights and self-replicating technologies? We’ll have to wait and see.
Tagged with: patents
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