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A co-author of an amicus brief on behalf of Bowman filed by the [[American Antitrust Institute]] expressed relief that the loss was on a narrow basis rather than providing a broad affirmation of the lack of patent exhaustion for self-replicating technologies.<ref>Shubha Ghosh, [http://patentlyo.com/patent/2013/05/guest-post-monopoly-without-apology.html ''Monopoly Without Apology''], in Patently-O (May 21, 2013) Quote: "The Court leaves open how the exhaustion doctrine applies to other self-replicating technologies. As a co-author of an amicus for the American Antitrust Institute on behalf of Bowman, I was relieved to read Justice Kagan’s rejection of the broad exception to the exhaustion doctrine for self-replicating technologies adopted by the Federal Circuit. Such a broad holding would mean that first sale and other applications of exhaustion would have no place in biotechnology or digital technologies. Contrary to the Federal Circuit, and citing treatment of software under copyright, the Court acknowledges that patent rights may not extend to necessary, but incidental copying, or to situations where copying occurs outside the control of the purchaser".</ref>
A co-author of an amicus brief on behalf of Bowman filed by the [[American Antitrust Institute]] expressed relief that the loss was on a narrow basis rather than providing a broad affirmation of the lack of patent exhaustion for self-replicating technologies.<ref>Shubha Ghosh, [http://patentlyo.com/patent/2013/05/guest-post-monopoly-without-apology.html ''Monopoly Without Apology''], in Patently-O (May 21, 2013) Quote: "The Court leaves open how the exhaustion doctrine applies to other self-replicating technologies. As a co-author of an amicus for the American Antitrust Institute on behalf of Bowman, I was relieved to read Justice Kagan’s rejection of the broad exception to the exhaustion doctrine for self-replicating technologies adopted by the Federal Circuit. Such a broad holding would mean that first sale and other applications of exhaustion would have no place in biotechnology or digital technologies. Contrary to the Federal Circuit, and citing treatment of software under copyright, the Court acknowledges that patent rights may not extend to necessary, but incidental copying, or to situations where copying occurs outside the control of the purchaser".</ref>

[[Richard H. Stern]] was sympathetic to Bowman and to the ancient practice of saving seed, and criticized the Court's classification of the act of planting seeds in order to grow crops as an act of "making" a new patented article rather than merely using a purchased article on which the patent rights had become exhausted.<ref name=Stern>Richard H. Stern, [http://docs.law.gwu.edu/facweb/claw/Bowman.pdf ''Bowman v Monsanto'': ''Exhaustion versus Making''], [2014] Eur. Intell. Prop. Rev. 255, 260-61.</ref>


==References==
==References==

Revision as of 23:03, 12 June 2015

Bowman v. Monsanto Co.
Supreme Court of the United States
Decided March 19, 2013
Full case nameVernon Hugh Bowman, Petitioner v. Monsanto Company, et al.
Docket no.11-796
Holding
Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission.
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinion
MajorityKagan, joined by unanimous

Bowman v. Monsanto Co., 569 U.S. __ (2013) is a United States Supreme Court patent decision in which the Court unanimously affirmed the Federal Circuit, and held that the patent exhaustion doctrine does not permit a farmer to plant and grow saved, patented seeds without the patent owner's permission. The decision held that Bowman's conduct infringed the patent rights of the patent owner, Monsanto.

The case garnered attention in part of its potential impact on genetic and self-replicating technologies, political concerns over the passage of a unrelated bill drafted in part by Monsanto, and the involvement of Justice Clarence Thomas, who previously served as a lawyer for Monsanto. The narrow scope of the ruling limited the impact of the case and did not set a broad legal precedent.

Background

In 2007, Monsanto sued Indiana farmer Vernon Hugh Bowman for patent infringement.[1]

In 1999 Bowman purchased soybean seeds from a grain elevator and planted them for his second planting that year.[2] Bowman purchased these seeds from the same elevator where he and neighbors sold their crops, many of which were transgenic,[2] and the elevator sold soybeans as commodities, not as seeds for planting.[1][2][3] He tested the new seeds, and found that as he had expected, some were transgenic and thus were resistant to glyphosate[2] He replanted seeds from the original second harvest in subsequent years for his second seasonal planting, supplementing them with more soybeans he bought at the elevator.[1] He informed Monsanto of his activities.[1][2]

Monsanto stated that he was infringing their patents because the soybeans he bought from the elevator were new products that he purchased for use as seeds without a license from Monsanto; Bowman stated that he had not infringed due to patent exhaustion on the first sale of seed to whatever farmers had produced the crops that he bought from the elevator, on the grounds that for seed, all future generations are embodied in the first generation that was originally sold.[3]

Bowman had previously purchased and planted Monsanto seeds under a license agreement promising not to save seeds from the resulting crop,[2] but that agreement was not relevant to his purchase of soybean seed from the grain elevator nor to the litigation.[4]

Lower court rulings

In 2009, the district court ruled in favor of Monsanto. On appeal, the Federal Circuit upheld the verdict.[1]

Bowman then sought review in the United States Supreme Court, which granted review,.[5]

The Supreme Court ruling

The Supreme Court unanimously affirmed the judgment of the Federal Circuit on May 13, 2013.[6][7]

In the Supreme Court case, Seth P. Waxman, the lawyer arguing on behalf of Monsanto and a former United States Solicitor General, argued: "Without the ability to limit reproduction of soybeans containing this patented trait, Monsanto could not have commercialized its invention and never would have produced what is, by now, the most popular agricultural technology in America." First made in 1996, the Roundup Ready soybean is used in more than 90 percent of the 275,000 soybean farms in the United States.[2]

The Supreme Court held that patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission.[4] For the farmer to plant a harvested and saved seed, to grow a further soybean crop, constituted an unauthorized "making" of the patented product, in violation of section 271(a) of the patent code.[8]

Reaction

The case received attention in the months leading up to the decision. Clarence Thomas, an Associate Justice of the Supreme Court of the United States, had served as a lawyer for the Monsanto Company 34 years earlier.[9] As the case was being heard, the Farmer Assurance Provision (also known as Monsanto Protection Act by critics) was signed into law by President Obama after garnering more than 250,000 signatures to oppose it.[10][11] Another concern was how the doctrine of patent exhaustion for self-replicating technologies will be viewed by the court.[12]

The decision was reported nationally and internationally by various news sources including the Washington Post,[13] Bloomberg,[14] the Los Angeles Times,[15] The Guardian,[16] and France24.[17]

A co-author of an amicus brief on behalf of Bowman filed by the American Antitrust Institute expressed relief that the loss was on a narrow basis rather than providing a broad affirmation of the lack of patent exhaustion for self-replicating technologies.[18]

References

  1. ^ a b c d e Monsanto Co. v. Bowman, Dkt. No. 2010-1068, 657 F.3d 1341 (Fed. Cir. 2011)
  2. ^ a b c d e f g Liptak, Adam (2013-02-19). "Supreme Court Appears to Defend Patent on Soybean". New York Times. Retrieved 2013-05-14.
  3. ^ a b "Monsanto Co. v. Bowman (Fed. Cir. 2011)". Patent Docs. September 22, 2011.
  4. ^ a b "BOWMAN v . MONSANTO CO. ET AL . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 11–796. Argued February 19, 2013—Decided May 13, 2013" (PDF). United States Supreme Court. Retrieved 2013-05-13.
  5. ^ "Court grants seven new cases (UPDATED)". SCOTUSblog. October 5, 2012.
  6. ^ Adam Liptak (May 13, 2013). "Monsanto Wins Case on Genetically Altered Soybeans". New York Times. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  7. ^ Bowman v. Monsanto Co. et al., No. 11–796, slip op. (S.Ct. May 13, 2013).
  8. ^ 35 U.S.C. § 271(a).
  9. ^ "Monsanto wins landmark patent case in Supreme Court". RT. Retrieved 2013-05-14.
  10. ^ "'Monsanto Protection Act' slips silently through US Congress". RT. Retrieved 2013-05-14.
  11. ^ "Obama signs 'Monsanto Protection Act' written by Monsanto-sponsored senator". RT. Retrieved 2013-05-14.
  12. ^ "Replication without Human Intervention: Lessons from Monsanto v. Bowman". The National Law Review. Retrieved 2013-05-14.
  13. ^ Barnes, Robert (2013-05-14). "Supreme Court rules for Monsanto, says farmer violated genetically modified soybeans' patent". Washington Post. Retrieved 2013-05-13.
  14. ^ "Monsanto Wins Seed Case as High Court Backs Patent Rights". Bloomberg. Retrieved 2013-05-13.
  15. ^ Savage, David G. (2013-05-13). "Supreme Court rules in favor of Monsanto in seed-patenting case". Los Angeles Times. Retrieved 2013-05-13.
  16. ^ Goldenberg, Suzanne (2013-05-13). "Supreme Court rules for Monsanto in Indiana farmer's GM seeds case". London: Guardian. Retrieved 2013-05-13.
  17. ^ "US Supreme Court finds for Monsanto in seed patent battle". France24. Retrieved 2013-05-13.[dead link]
  18. ^ Shubha Ghosh, Monopoly Without Apology, in Patently-O (May 21, 2013) Quote: "The Court leaves open how the exhaustion doctrine applies to other self-replicating technologies. As a co-author of an amicus for the American Antitrust Institute on behalf of Bowman, I was relieved to read Justice Kagan’s rejection of the broad exception to the exhaustion doctrine for self-replicating technologies adopted by the Federal Circuit. Such a broad holding would mean that first sale and other applications of exhaustion would have no place in biotechnology or digital technologies. Contrary to the Federal Circuit, and citing treatment of software under copyright, the Court acknowledges that patent rights may not extend to necessary, but incidental copying, or to situations where copying occurs outside the control of the purchaser".
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