Farmer violated genetically modified soybeans’ Monsanto patent says Supreme Court
A soybean seed patented technology was invented, produced and sold by Monsanto that is genetically altered to resist its “RoundUp” herbicide. The patented Roundup Ready soybean seeds are soybean seeds that are genetically altered which allows them to survive exposure to the herbicide glyphosate. Monsanto sells the seeds to farmers subject to a licensing agreement.
In this famous case, farmer Victor Bowman had argued that he could grow some of Monsanto’s patented seeds he brought from grain elevator. Bowman purchased soybean for planting from a grain elevator and expected that most of the grain elevator soybean would be Monsanto’s herbicide-resistant soybean.
What is Patent Exhaustion?
Patent exhaustion doctrine can be defined as first unrestricted sale by a patent owner of a patented product exhausts the patent owner’s control over that particular item. The doctrine also grants license and the rights to the purchaser to use and resell the product. It should also be noted that the first sale patented item itself terminates the patent owner’s rights with respect to that item. Therefore, the re-selling of the patented product by the purchaser with an implied license is not an infringement of the patent.
In the Monsanto case, Bowman, according to patent exhaustion, had the right to use the purchased product in several different ways without Monsanto’s permission, including resale, human consumption or animal consumption of the product.
The Plant Variety Protection Act, 1970
The Plant Variety Protection Act of 1970 is an intellectual property right in the United States. This PVP Act gives plant breeders up to 25 years of exclusive right over new, distinct, uniform, and stable sexually reproduced or tuber propagated plant and seed varieties. The farmers generally get confused between PVPA and plant patents which only include asexually reproduced plants and not including tuber propagated plants.
Patent Exhaustion Can be applied to a Sold Article
Justice Kagan acknowledged that under the patent exhaustion doctrine, an authorized sale of a patented product cuts off the patent owner’s right to control of that product. She further explained that the sale of that article by the patent owner gives a reward to the patentee. But, this point on patent rights applies only to the particular article sold. That is because the patent holder has “received his reward” only for the actual article sold, and not for subsequent recreations of it.
However, if the purchaser of the article could make and sell endless copies, the patent would effectively protect the invention for just a single sale. Bowman forthrightly acknowledged the “well settled” principle “that the exhaustion doctrine does not extend to the right to ‘make’ a new product.”
The doctrine of Patent Exhaustion was decided against Bowman in this case. Moreover, under the patent exhaustion doctrine, Bowman could resell the patented soybeans he purchased from the grain elevator; so too he could consume the beans himself or feed them to his animals. Furthermore, the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). Justice Kagan, stated that Bowman took the soybeans he purchased home and planted them in his fields at the time he thought best and applied glyphosate to kill weeds. Subsequently, Bowman harvested many more beans than he started with. That is how “to‘make’ a new product,” to use Bowman’s words, when the original product is a seed.
Question arises is it necessary for the farmers to get permission before planting the seeds?
Bowman demanded that the usage of seeds is covered by the patent exhaustion doctrine because that is the normal way farmers use seed. The argument was rejected by the Court explaining that Bowman should seek an exceptional exemption to an already settled rule that the exhaustion doctrine does not allow the right to make a new product.
When a farmer purchases Roundup Ready seed he intends to grow a crop and he knows he will be able to plant it. However, Monsanto sets the state of affairs where farmer’s ability to reproduce Roundup Ready seed is diminished and cannot realistically prevent all plantings. So Monsanto sells the RoundUp Ready seed to farmers with a license to use it to make a crop only and no further seeds will be generated.
Bowman’s another argument was also rejected by the Court as he said the reproduction of seeds had occurred naturally and bowman himself had not made imitation of Monsanto’s planted invention. On this the court commented the Bowman was not a fine observer of his crops and that his seeds had not spontaneously created successive soybean crops. Court further declared that Bowman had purchased the beans and applied herbicide, then saved them for coming season, then planted the beans, tended and treated them properly, and harvested numerous seeds for marketing or saving for the next cycle. This was not the point to be blamed on the seeds but only Bowman who controlled the reproduction of Monsanto’s patented invention. It was noted that inventions like the above are becoming more common nowadays.
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