Monday, May 13, 2013

Bowman v Monsanto

The US Supreme Court today decided Bowman v Monsanto in the benefit to Monsanto. It stated:

Held: Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

(a) Under the patent exhaustion doctrine, “the initial authorized sale of a patented article terminates all patent rights to that item,” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625, and confers on the purchaser, or any subsequent owner, “the right to use [or] sell” the thing as he sees fit, United States v. Univis Lens Co., 316 U. S. 241, 249–250. However, the doctrine restricts the patentee’s rights only as to the “particular article” sold, id., at 251; it leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. By planting and harvesting Monsanto’spatented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once. 

(b) Bowman argues that exhaustion should apply here because he is using seeds in the normal way farmers do, and thus allowing Monsanto to interfere with that use would create an impermissible exception to the exhaustion doctrine for patented seeds. But it is really Bowman who is asking for an exception to the well-settled rule that exhaustion does not extend to the right to make new copies of the patented item. If Bowman was granted that exception, patents on seeds would retain little value. Further, applying the normal rule will allow farmers to make effective use of patented seeds. Bowman, who purchased seeds intended for consumption, stands in a peculiarly poor position to argue that he cannot make effective use of his soybeans. Bowman conceded that he knew of no other farmer who planted soybeans bought from a grain elevator. In the more ordinary case, when a farmer purchases Roundup Ready seed from Monsanto or an affiliate, he will be able to plant it in accordance with Monsanto’s license to make one crop. 

The issue is simply that Monsanto developed a seed protecting itself against Roundup.  However when corn is made from the seed, it is made by cross fertilizing naturally with plants like itself and others. Nature does the mixing. Bowman took the F1 seed, namely the first cross, and planted it. He then treated it with Roundup killing off the plants without the gene protection and selecting the good genes. The Court then says by this ruling that you may genetically engineer something, and under the old interpretation you protected the something you engineered, via vegetative propagation. But now it protects against cross propagation by fertilizing. This is a dramatic extension of plant patents. The old law allowed you to patent a purple flower. You then propagated it by cuttings and it was still yours. However if you used it to cross with another flower the resulting plants were yours. Perhaps no longer!

Does that mean I need the Patent basis for every plant I use, and for how many generations. This decision creates a real mess. It is a shame out Judges have no knowledge of Biology.