On February 19, 2013, the Supreme Court heard oral arguments in Bowman v. Monsanto, a case in which Indiana farmer Bowman argued that purchaser’s rights should trump patent rights.
Bowman purchased commodity soybeans from a grain elevator and used these as seed to grow a new crop of soybeans. The majority of the commodity soybeans carried Monsanto’s patented glyphosphate resistance trait (Round-Up Ready®), which Bowman knew. He treated the soybean plants with Round-Up®, which eventually produced seed also carrying Monsanto’s patented glyphosphate resistance trait.
Monsanto sued Bowman for infringement of its patents. Bowman lost below at both the trial court and the appellate court, where both courts concluded that Bowman “made” the claimed glyphosphate resistant soybeans by planting the purchased seeds and growing new infringing seeds that did not previously exist.
Bowman argued that when Monsanto sold its seed to farmers who grew soybeans and then sold them as commodities, Monsanto exhausted its rights in the invention as claimed, under the doctrine of patent exhaustion. Monsanto counter-argued that the sale exhausted its rights in the seeds that it actually sold, but did not exhaust all its rights under the patents, such as when unauthorized copies of the patented seeds are made.
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