Justices Hit Farmers Hard with Monsanto

The U.S. Supreme Court in Bowman v. Monsanto, No. 11-796 (May 13, 2013) held that patent exhaustion does not permit a farmer (Bowman) to reproduce patented seeds through planting and harvesting without getting permission from the patent holder (Monsanto) and that Bowman “makes” the seeds he harvests.

The Court held that patent exhaustion is no defense for Bowman.  The defense of patent exhaustion is limited to the purchased article.  The second-generation Roundup-Ready seeds are not covered by the defense because they are not the very seeds/soybeans Bowman had actually purchased.

Then, the court found that Bowman had made, created or constructed the second-generation seeds.

Bowman argued that he did not “make” the second-generation seed and that his actions therefore did not fall within the patent infringement statute, 35 U.S.C. Section 271(a).  Specifically, Section 271(a) provides that, “whoever without authority [makes, uses, offers to sell, or sells … or imports] into the United States any patented invention during the term of the patent therefor, infringes the patent.”  (Emphasis added).  The Supreme Court did not buy Bowman’s so-called “blame the bean” defense, in which Bowman attempted to blame the beans’ ability to self-replicate.  According to the court, Bowman [planted] the Roundup-Ready seeds, [tended]and [treated] them ([exploiting] their patented glyphosate resistance), [culled], [harvested], and [saved] them and, as a result, “[controlled] the reproduction” of Monsanto’s patented invention.

The Supreme Court’s decision arguably places new obligations on farmers and will likely create considerable insecurity within the farming community, while leaving Monsanto and other industry leaders with no incentive to manage or moderate such programs.