Supreme Court sides with Monsanto in bioengineered soybean case

by Keith Nunes
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WASHINGTON – In a unanimous decision handed down May 13, the U.S. Supreme Court sided with Monsanto in regards to the case of Bowman v. Monsanto Co. The ruling upholds a Federal Circuit court ruling that said the issue of patent exhaustion does not apply to the case.

The case of Bowman v. Monsanto Co., involves an Indiana farmer, Vernon Hugh Bowman, who initially planted bioengineered soybean seeds according to the parameters established by Monsanto, the manufacturer. But he then bought cheaper seeds from a grain elevator to plant a second crop that he hoped might also offer “Roundup Ready” protection.

That is because he knew that the less-expensive seeds had about a significant chance of also being immune to the Roundup herbicide. Mr. Bowman’s maneuver to save money and circumvent patent-related restrictions was illegal, in the opinion of Monsanto. Lower courts that ruled on the case agreed.

Mr. Bowman’s case, though, hinged on a concept known as patenting’s “exhaustion doctrine,” which asserts that it is possible to only sell a patented product once and keep the protection. Mr. Bowman replanted generic seeds — not the ones from Monsanto that he had signed an agreement about — and therefore Mr. Bowman expected the exhaustion doctrine would apply. Monsanto successfully argued in lower courts that seeds with the Roundup Ready gene in them, wherever they were obtained, constituted a patent infringement if they were planted to produce more soybeans without the knowledge of Monsanto.

In the Supreme Court ruling, Justice Elena Kagan wrote that by planting and harvesting Monsanto’s patented seeds, Mr. Bowman made additional copies of Monsanto’s patented invention, and “his conduct thus falls outside the protections of patent exhaustion.”

Justice Kagan added in the ruling, “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.”

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