Biotechnology Industry Reaps a Harvest of Patent Protection from Supreme Court

 Excerpt:

At the height of this spring season, the Supreme Court planted a seed of hope for the biotechnology and other industries that offer self-replicating technologies. In Bowman v. Monsanto Co., 2013 U.S. LEXIS 3519 (2013) [an enhanced version of this opinion is available to lexis.com subscribers], the court unanimously ruled that farmer Vernon Bowman infringed upon Monsanto's patents on soybean seeds when he replanted these genetically modified seeds to create more crops without paying Monsanto a fee.

The question before the court was "whether a farmer who buys patented seeds may reproduce them through planting and harvesting without the patent holder's permission." Monsanto holds patents on genetically modified soybean seeds, Roundup Ready, which are resistant to glyphosate, the active ingredient in many herbicides.

Monsanto sells Roundup Ready seeds directly to farmers and to distributors who then sell the seeds to farmers under a special licensing agreement that limits farmers' use of these patented seeds to one planting. Under the Monsanto license, the farmer may use the crop produced from that planting, for example, for household consumption or as animal feed, but may not use the harvested seeds for second, third (etc.) planting cycles. This means that farmers need to buy seeds from Monsanto or from a licensed Monsanto distributor each season.

Farmer Bowman thought of an "unorthodox" way to get around the agreement. He bought the Roundup Ready seeds for the first season planting, but for the second season of each year, he purchased seeds from a grain elevator with a reasonable expectation that many of them are genetically modified Roundup Ready seeds. He replanted these seeds. This pattern continued for eight years, until Monsanto caught up with Mr. Bowman's subterfuge and sued him for patent infringement.

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