Soybeans?? Can a farmer commit patent infringement just by planting soybeans he bought on the open market?
The Court is pondering an appeals court decision saying that such planting can, in fact, infringe patents.
In 1994, the agricultural giant Monsanto obtained a patent covering a line of "Roundup Ready" crops that had been genetically modified to resist Monsanto's Roundup herbicide.
However, farmers remain free to sell the soybeans they grow in the commodity market, where most are used to feed people or livestock.
So Bowman planted (and re-planted) commodity soybeans instead of using Monsanto's seeds. When Monsanto discovered what Bowman was doing, it sued him for patent infringement.
Patent protection or freedom to farm?
Bowman argued his use of the seeds is covered by patent law's "exhaustion doctrine." This doctrine, like copyright law's first sale doctrine, holds that a patent holder's rights in a particular product are "exhausted" when the product is sold to an end user.
Bowman argued that when Monsanto sold seed to a farmer, it exhausted its rights not only to that specific seed but to all of the seed's descendants.
But Monsanto countered that each new generation of seeds is a separate product and thus requires a separate patent license. In effect, Monsanto contends that Bowman is illegally "manufacturing" infringing soybeans.
Monsanto has a point. Taking Bowman's argument to its logical conclusion would imply that anyone could buy a single batch of commodity (but still Roundup Ready) soybeans and use it to sell an unlimited number of copies. This would effectively eviscerate Monsanto's patent protection.
Yet Monsanto's position—that planting Monsanto-derived soybeans always requires Monsanto's permission—could also have troubling consequences.
Last year, the United States Court of Appeals for the Federal Circuit ruled, as it had on several previous occasions, that patent exhaustion did not cover second-generation seeds.
The Patently-O blog reports that a request for the Obama administration's views typically requires four justices, suggesting significant interest in the case.
the Federal Circuit and recommend against the Court taking the case.