The Supreme Court ruled unanimously yesterday in favor of Monsanto in Bowman v. Monsanto, a case involving Monsanto’s recombinant, Roundup Ready® seeds. The opinion rejected the arguments from petitioner, Indiana farmer Vernon Hugh Bowman, that Monsanto’s rights in its seed had been “exhausted” by their first sale (here, to a grain elevator) and that the Court should reject any “special exception” to the first-sale doctrine of patent exhaustion for “selfreplicating technologies.” Instead, the Court held that Farmer Bowman’s activities of replanting so-called commodity seed obtained from a grain elevator was an impermissible “making” of additional copies of Monsanto’s invention that were precluded by the Court’s precedent going back more than a century. Although cautioning that it was writing narrowly, the Court’s opinion by Justice Kagan affirmed the Federal Circuit’s decision that Farmer Bowman’s activities constituted infringement of Monsanto’s patents.
To recap, the case arose as the result of Farmer Bowman replanting Monsanto's patented Roundup Ready® seed claimed in U.S. Patent Nos. 5,352,605 and RE39,247 (a reissue of U.S. Patent No. 5,633,435). Pioneer Hi-Bred, one of Monsanto's licensed seed producers, sold seed to Farmer Bowman, which sale was subject to a Technology Agreement similar to the Agreements Monsanto typically requires for farmers who purchase its seed. Under the Technology Agreement, the licensed grower agreed: (1) “to use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season”; (2) “to not supply any of this seed to any other person or entity for planting”; (3) “to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting”; and (4) “to not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data, or seed production.” It was undisputed that Bowman complied with these provisions as to its "first planting" each year.
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