Contemplating the GM patent rules? I was as surprised as anyone when the Supremes decided hear (cert) Bowman vs. Monsanto. Like Bryan Endres, I believe this could be bad (?) news for biotech profits.
What has the agricultural law community talking, however, is the planting of seeds not "saved" by the farmer from the previous growing season, but rather the purchase of soybeans from a grain elevator (known as "commodity seed") and the subsequent planting of those seeds. The seeds were "sold" by the original farmer to the grain elevator without restriction, and thus the question is whether the prohibition against planting commodity seeds applies to the subsequent farmer.Given the solidity of the conservative wing of SCOTUS, I see a reversal as very plausible based in part on reining in intellectual property rights expansion at the expense of individual rights.
A federal trial court in Indiana, as well as the Court of Appeals for the Federal Circuit in Washington, DC, ruled in favor of the patent holder--Monsanto. See Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011). The court avoided applying the First Sale Doctrine, holding that even if the patent rights in the commodity seed are exhausted by the authorized sale to the grain elevator, once the second farmer plants the commodity seed containing the patented technology and the next generation of seed develops, this farmer has in essence recreated the patented item without permission from the patent owner--a type of patent infringement somewhat similar to the example described above of building copies of the patented chair. See id. at 1347-48.
In many respects, the Court of Appeals' ruling in Bowman last year conformed with the general understanding of how patent law applies to agro-biotechnology and generated little discussion. So why would the U.S. Supreme Court, especially in light of the thousands of petitions for cert it receives each year, decide to look further into this particular case? Are the justices looking to solidify intellectual property protection for self-replicating patented products such as seeds? Or do they think intellectual property rights may have "gone too far" and that post-sale restrictions included in technology use agreements need to be scaled back? [More]