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Bowman v. Monsanto Co.
Supreme Court of the United States
Argued Feb. 19, 2013 Decided Mar. 19, 2013
Full case name	Vernon Hugh Bowman v. Monsanto Company, et al.
Docket no.	11-796
Citations	569 U.S. ___ (more)133 S. Ct. 1761, 185 L. Ed. 2d 931
Holding
Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission.
Court membership
Chief Justice John Roberts Associate Justices Antonin Scalia · Anthony Kennedy Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan
Case opinion
Majority	Kagan, joined by a unanimous court

Bowman v. Monsanto Co., 569 U.S. ___ (2013) is a United States Supreme Court patent decision in which the Court unanimously affirmed the Federal Circuit, and held that the patent exhaustion doctrine does not permit a farmer to plant and grow saved, patented seeds without the patent owner's permission. The decision held that Bowman's conduct infringed the patent rights of the patent owner, Monsanto.

The case garnered attention in part of its potential impact on genetic and self-replicating technologies, political concerns over the passage of a unrelated bill drafted in part by Monsanto, and the involvement of Justice Clarence Thomas, who previously served as a lawyer for Monsanto. The narrow scope of the ruling limited the impact of the case and did not set a broad legal precedent.

Background

In 2007, Monsanto sued Indiana farmer Vernon Hugh Bowman for patent infringement.

In 1999 Bowman purchased soybean seeds from a grain elevator and planted them for his second planting that year. Bowman purchased these seeds from the same elevator where he and neighbors sold their crops, many of which were transgenic, and the elevator sold soybeans as commodities, not as seeds for planting. He tested the new seeds, and found that as he had expected, some were transgenic and thus were resistant to glyphosate He replanted seeds from the original second harvest in subsequent years for his second seasonal planting, supplementing them with more soybeans he bought at the elevator. He informed Monsanto of his activities.

Monsanto stated that he was infringing their patents because the soybeans he bought from the elevator were new products that he purchased for use as seeds without a license from Monsanto; Bowman stated that he had not infringed due to patent exhaustion on the first sale of seed to whatever farmers had produced the crops that he bought from the elevator, on the grounds that for seed, all future generations are embodied in the first generation that was originally sold.

Bowman had previously purchased and planted Monsanto seeds under a license agreement promising not to save seeds from the resulting crop, but that agreement was not relevant to his purchase of soybean seed from the grain elevator nor to the litigation.

Lower court rulings

In 2009, the district court ruled in favor of Monsanto. On appeal, the Federal Circuit upheld the verdict.

Bowman then sought review in the United States Supreme Court, which granted review,.

Supreme Court

The Supreme Court unanimously affirmed the judgment of the Federal Circuit on May 13, 2013.

In the Supreme Court case, Seth P. Waxman, the lawyer arguing on behalf of Monsanto and a former United States Solicitor General, argued: "Without the ability to limit reproduction of soybeans containing this patented trait, Monsanto could not have commercialized its invention and never would have produced what is, by now, the most popular agricultural technology in America." First made in 1996, the Roundup Ready soybean is used in more than 90 percent of the 275,000 soybean farms in the United States.

Justice Elena Kagan delivered the opinion of the Court. She stated that patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission. For the farmer to plant a harvested and saved seed, to grow a further soybean crop, constituted an unauthorized "making" of the patented product, in violation of section 271(a) of the patent code.

Subsequent developments

The case received attention in the months leading up to the decision. Justice Clarence Thomas had served as a lawyer for the Monsanto Company 34 years earlier. As the case was being heard, the Farmer Assurance Provision (also known as Monsanto Protection Act by critics) was signed into law by President Obama after garnering more than 250,000 signatures to oppose it. Another concern was how the doctrine of patent exhaustion for self-replicating technologies will be viewed by the court.

The decision was reported nationally and internationally by various news sources including the Washington Post, Bloomberg, the Los Angeles Times, The Guardian, and France24.

A co-author of an amicus brief on behalf of Bowman filed by the American Antitrust Institute expressed relief that the loss was on a narrow basis rather than providing a broad affirmation of the lack of patent exhaustion for self-replicating technologies. Another academic commentator did not take issue with the Court's refusal to shelter Bowman's conduct under the exhaustion doctrine, but criticized the Court's classification of the act of planting seeds and growing crops from them as an act of "making" a new patented article However, the Court's use of "making" is consistent with past US cases, UK case law, and Canadian case law.

References

1. ^ Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011).
2. ^ Liptak, Adam (2013-02-19). "Supreme Court Appears to Defend Patent on Soybean". New York Times. Retrieved 2013-05-14.
3. ^ "Monsanto Co. v. Bowman (Fed. Cir. 2011)". Patent Docs. September 22, 2011.
4. ^ Bowman v. Monsanto Co., No. 11-796, 569 U.S. __ (2013).
5. "Court grants seven new cases (UPDATED)". SCOTUSblog. October 5, 2012.
6. Liptak, Adam (May 13, 2013). "Monsanto Wins Case on Genetically Altered Soybeans". New York Times. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
7. 35 U.S.C. § 271(a). Section 271(a) gives the owner of a patent the exclusive right to make products that the patent covers.
8. "Monsanto wins landmark patent case in Supreme Court". RT. Retrieved 2013-05-14.
9. "'Monsanto Protection Act' slips silently through US Congress". RT. Retrieved 2013-05-14.
10. "Obama signs 'Monsanto Protection Act' written by Monsanto-sponsored senator". RT. Retrieved 2013-05-14.
11. "Replication without Human Intervention: Lessons from Monsanto v. Bowman". The National Law Review. Retrieved 2013-05-14.
12. Barnes, Robert (2013-05-14). "Supreme Court rules for Monsanto, says farmer violated genetically modified soybeans' patent". Washington Post. Retrieved 2013-05-13.
13. "Monsanto Wins Seed Case as High Court Backs Patent Rights". Bloomberg. Retrieved 2013-05-13.
14. Savage, David G. (2013-05-13). "Supreme Court rules in favor of Monsanto in seed-patenting case". Los Angeles Times. Retrieved 2013-05-13.
15. Goldenberg, Suzanne (2013-05-13). "Supreme Court rules for Monsanto in Indiana farmer's GM seeds case". London: Guardian. Retrieved 2013-05-13.
16. "US Supreme Court finds for Monsanto in seed patent battle". France24. Retrieved 2013-05-13.
17. Ghosh, Shubha, Monopoly Without Apology, in Patently-O (May 21, 2013)
18. Stern, Richard H., Bowman v Monsanto: Exhaustion versus Making, Eur. Intell. Prop. Rev. 255, 260-61. He argued that, because Congress has not addressed the issue whether planting and growing a crop from harvested seeds constituted a "making" of a patented product, the Court should have left it to Congress to make the decision as to whether replanting patented seed should consitute infringement
19. Daryl Lim, Self-Replicating Technologies and the Challenge for the Patent and Antitrust Laws, 32 Cardozo Arts & Ent. L.J. 196 (2013-2014)

• United States patent case law
• United States Supreme Court cases
• Monsanto litigation
• 2013 in United States case law
• United States Supreme Court cases of the Roberts Court