Supreme Court rules on Bowman vs Monsanto and rejects patent exhaustion claim.

The Supreme Court on the 13th of May issues its opinion on Bowman vs. Monsanto. The seed patent case has been closely watched by farmers and organizations opposing the actions of Monsanto. The issued opinion can be accessed here.

The Court held that the doctrine of patent exhaustion does not apply and that Monsanto had the legal right to stop farmers from saving seeds from patented genetically modified crops one season and plant them the next.

At issue was that Monsanto, the largest producer of genetically modified crops, developed a series of genetically plants, including soybeans, that can withstand the active ingredient glyphosate found in many weed killers, including the company’s own Roundup. The purpose of this plant variety is that farmers can spray to kill weeds and other invasive plants, reducing the amount of labor necessary to keep the unwanted species from harming the money crops.

When farmers use Monsanto’s seed products Monsanto forces farmers to license the seed use to one growing season and promise not to save seeds for later use. Otherwise, farmers could follow the practice of keeping out seeds for subsequent planting, limiting the amount of money Monsanto could make.

Indiana farmer Vernon Bowman, as other farmers did, planted two soybean crops a year. For the first crop, he would purchase Roundup Ready seeds from an authorized reseller. For the second crop, he went to a grain elevator — an agricultural middleman that the local farmers sold to — and purchased “commodity soybeans” intended for animal or human food use.

However, he then planted that seed for his second crop. Because most of them came from farms that also grew Monsanto varieties, Bowman knew he would effectively have Roundup Ready seed without paying Monsanto’s price. Bowman then saved seed and replanted it for the second crop the next year.

Monsanto found out about Bowman’s practices and sued Bowman resulting in the prolonged litigation.

Associate Justice Elena Kagan, author of the court’s opinion, wrote the following:

“Under the doctrine of patent exhaustion, the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. Such a sale, however, does not allow the purchaser to make new copies of the patented invention.

The pivotal point is that Monsanto’s seed is an example of “self-replicating technologies.” The justices found that Bowman was effectively producing more product — like buying a book and then printing new copies of the text — rather than making use of one purchased product:

[I]f simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction.

The issue of terminating seeds and occurrence of transgenic events in progeny seeds was not addressed in this case. Patented seeds have the ability to produce offspring that contain new genes obtained from surrounding farmer crop. The seed progeny obtained from the parent plant would therefore not be an exact replica or copy of the first starter parent seed.

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