Patent Law – Monsanto can restrict use of patented seeds

Farmer, Vernon Bowman, gets an A for effort and imagination, but his idea of using “commodity soybeans” (intended for human or animal consumption) to plant soybean crops was deemed by the Supreme Court to infringe Big Ag company, Monsanto’s, patents in Roundup Ready soybean seeds (see their opinion here).

Monsanto sells a popular herbicide, Roundup.  Monsanto also sells patented genetically-modified soybean seeds, called Roundup Ready, that can withstand application of Roundup.  Farmers who buy Roundup Ready must agree to a license wherein they can only plant the seeds in one season, after which the resulting crop must be consumed or sold as a commodity.

Bowman’s idea was to purchase commodity soybeans for use in planting soybean crops for the season’s second crop.  Since Roundup Ready was so popular, Bowman correctly guessed that a significant percentage of commodity soybeans were from Roundup Ready seeds.  Therefore, Bowman could grow a soybean crop with the traits of Roundup Ready without paying the premium price for new Roundup Ready seeds.

Monsanto sued Bowman for violating its patent in Roundup Ready.  The patent dispute came down to the scope of the doctrine of patent exhaustion.  Patent exhaustion, a variation of the first sale doctrine covered in the last blog post about selling used textbooks, limits a patent holder’s right to control what others can do after the patented item is sold.  However, the patent holder has the right to prevent a buyer from making new copies of the patented item.

Bowman contended patent exhaustion applied when the soybeans grown from Roundup Ready seeds were sold to the commodity soybean dealer, and that he was merely planting the resulting seeds, not making copies.  The Supreme Court, though, found Bowman planted the soybeans solely to make replicas of them, and thus was making copies of a patented item.

For more on this case, see Monsanto’s justification for suing farmers for patent infringement; this article on how Roundup Ready may have led to higher food prices; and this Ars Technica article.


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