Bowman v. Monsanto

Tomorrow morning, the Supreme Court will hear case 11-796, Vernon Hugh Bowman v. Monsanto Company. The question they are considering is as follows:

Patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale. In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose-namely, for planting. The question presented is:

Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?

The result of this case, no matter how it is decided, will have effects far beyond the seed industry. Future technologies, such as self-replicating nano-bots and gene therapy as well as old technologies such as refurbished electronics could be affected.

The Legal Information Institute at Cornell Law School has prepared a solid summary of the case, including links to the amicus briefs: Vernon Hugh Bowman v. Monsanto Company. You’ll want to read this summary before checking out various articles in the popular media, as the issues here are complex.

Unfortunately, many articles such as Time’s Is It A Crime to Plant A Seed? that seems to have chosen snark or sensationalism over careful reporting. Commenter “jmiklovic” seems to get it, though (emphasis added):

Patent law is in place so that you cannot buy a product, process, or technology and duplicate it for your own gain. It really does make sense. If I buy a cast iron part that you have invested a lot of time into engineering, then make my own sand cast from your part and duplicate repeatedly for my own personal use, you have every right to come back at me. Of course this is a different in that the seed replicates itself.

Grain bins by wpe9fon via Flickr.

Grain bins by wpe9fon via Flickr.

This commenter refers to the problem that there are few self-replicating items that are patented or contain patents. Another problem, in my humble-non-legal-trained opinion, is that there is an error in the question itself. The “natural and foreseeable purpose” of commodity soybean grain is for feed, processing into oil and textured vegetable protein, etc – the purpose is to enter the food supply, not to be planted. When a farmer buys seed for planting (genetically engineered or not), that seed usually has a contract associated with it that says that the farmer can not replant the harvested grain. Bowman argues that the original contract does not apply if he first sells the grain to his local grain bin then buys grain back from the bin to plant. This might be true in a legal sense, but it certainly violates the spirit of the contract, in my own humble-non-legal-trained opinion. I wonder if/how this nuanced difference between seed as seed and seed as grain will be brought up in the case. For discussion of seed contracts, see Brian Scott’s post: I Occupy Our Food Supply Everyday.

Update: The Atlantic has a reasonably good article on the case, lots of background.

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