In Oral Arguments during Bowman v. Monsanto the Supreme Court Struggles with Exhaustion Doctrine for Patented Seeds

On February 19, 2013, the United States Supreme Court heard oral arguments in Vernon Hugh Bowman v. Monsanto Company. This case has far-reaching implications for the patent exhaustion or first sale doctrine in self-replicating technologies such as seeds, microorganisms, tissue culture, etc. For example, even if a seed company does not have a sophisticated, licensing or conditional sale program like Monsanto, under the Federal Circuit holding on appeal, if a grower buys patent protected seeds (first generation) without any restrictions and saves later generations of seeds for replanting, the grower can be liable for patent infringement with respect to the later generation seeds. Based on the line of questioning during the Supreme Court oral arguments, the Court debated how to apply the patent exhaustion doctrine to self replicating technologies and appeared to struggle with drawing a line between second generation and later generation progenies.

Background -

Monsanto owns patents covering Roundup Ready® seeds such as soybeans that exhibit resistance to glyphosate based herbicides, such as Monsanto’s Roundup® product. The following diagram summarizes Monsanto’s sale and licensing arrangements for Roundup Ready® (“RR”) seeds and farmer Bowman’s activities.

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