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Bowman v. Monsanto, the patent exhaustion case involving saved seed, agricultural biotechnology, genetic engineering, and “self-replicating technologies,” will be argued tomorrow (Feb. 19) at the Supreme Court. Madisonian.net is delighted to host the following guest post on the case from Professor Mark Patterson of Fordham University School of Law:
Bowman v. Monsanto: Making, Saving, and Using Genetically Modified Seeds
Mark R. Patterson
The Bowman v. Monsanto Co. case currently before the Supreme Court is a challenging one. The case poses difficult conceptual problems because the self-replicating inventions at issue — soybean seeds — present unanswered questions about patent law’s prohibition against unauthorized “making” of patented inventions. But the case is also challenging because each of the parties has staked out an extreme position that seems an implausible resolution of the case. There is, however, an intermediate position that has already been provided by the Supreme Court for the Plant Variety Protection Act (PVPA) in Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995). Importing the Asgrow approach from the PVPA for use also with utility patents would provide a solution that is both doctrinally acceptable and practical.
The largely agreed-upon facts are these: Vernon Hugh Bowman bought “commodity” soybean seed from a grain elevator. “Commodity” seed is seed intended for use as food or feed, rather than for planting, but Bowman’s purchases were not subject to any contractual restrictions regarding the seed’s use. The commodity seed included some of Monsanto’s patented Roundup Ready seed, but that seed had been sold to the grain elevator by growers that had produced it from Roundup Ready seed obtained in authorized sales from Monsanto. Monsanto’s Technology Agreement, which those growers had been required to sign, permitted the growers to make sales of their crops’ second-generation Roundup Ready seed — as commodity seed. Thus, there was no violation of any Monsanto restriction either in the sales of the seed to the grain elevator or in Bowman’s purchase of it from the elevator. Bowman planted the commodity seed that he had purchased from the grain elevator, including that portion of it that was second-generation Roundup Ready seed, and he also replanted the subsequent (third, fourth, etc.) generations that he produced from those original purchases.
(Below: A summary of Monsanto’s arguments, a summary of Bowman’s arguments, and a recommended solution.)Read More »Bowman v. Monsanto: A Primer and a Solution