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September 21, 2011

Down On The Farm

Vernon Hugh Bowman bought and planted Monsanto's patented soy seeds for his first crop. For his late-season second crop, which he considered "riskier planting," he skimped and "purchased commodity seed from a local grain elevator." He applied the same toxic and ecologically devastating Monsanto herbicide, finding, to his satisfaction, that the second-crop seed survived. Hayseed Bowman even told Monsanto of his experience. His candor got him sued for patent infringement.

Monsanto v. Vernon Hugh Bowman (CAFC 2010-1068) precedential; Judges Bryson, Linn (author), and Dyk

On November 2, 2007, Monsanto investigated eight of Bowman's fields, totaling 299.1 acres, and confirmed that Bowman's second-crop soybean seeds (the progeny of the commodity seeds) contained the patented Roundup Ready® technology.

Horizontal gene transfer is rampant among plants facing the toxicity conditions that Monsanto's herbicide presents. Hence the dime-store seeds could pick up on plasmids that the patented seeds share. Of course, the CAFC clowns don't care about science. Their job is to squash those who threaten to reduce the monopolistic profits of the largest corporations in every industry.

Bowman argues that Monsanto's patent rights are exhausted with respect to all Roundup Ready® soybean seeds that are present in grain elevators as undifferentiated commodity. According to Bowman, the "[s]ales of second-generation seeds by growers to grain elevators, and then from grain elevators to purchasers (like Bowman) are authorized according to the terms of Monsanto's [T]echnology [A]greement[], and are thus exhausting sales . . . under the Supreme Court's analysis in Quanta [Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008)]." Appellant Br. 23.

Bowman further argues that if the right to use patented seeds does not include the unlimited right to grow subsequent generations free of liability for patent infringement, then any exhaustion determination "is useless." Appellant Br. 31. Bowman urges the court to hold, under Quanta, that each seed sold is a "substantial embodiment" of all later generations, thus adopting a "robust" exhaustion doctrine that encompasses the progeny of seeds and other self-replicating biotechnologies. According to Bowman, "[t]he Supreme Court disapproved undermining the exhaustion doctrine by categorically eliminating its application [to] method patents [and t]his [c]ourt should not condone effectively eliminating the doctrine for self-replicating products." Appellant Br. 31.

Monsanto's argument went to breach of contract, cast as patent exhaustion.

Monsanto counters that licensed growers' sales of second-generation seeds to grain elevators as commodity seeds did not exhaust Monsanto's patent rights in those seeds "[b]ecause of the express condition [in the Technology Agreement] that the progeny of licensed seed never be sold for planting." Appellee Br. 32. According to Monsanto, "a grower's sale of harvested soybeans to a grain elevator is not an 'authorized sale' when it results in those soybeans subsequently being planted." Id.

In which case the infringer was the seller of the seeds. Bowman's infringement was incidental, as a user of a product he bought.

Monsanto argues that, even if there was exhaustion with respect to commodity seeds, Bowman is nevertheless liable for infringement by planting those seeds because patent protection "is independently applicable to each generation of soybeans (or other crops) that contains the patented trait." Id. 15-16. See Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006); Monsanto Co. v. McFarling, 302 F.3d 1291 (Fed. Cir. 2002). Monsanto contends that "under Bowman's analysis, patent protection for self-replicating inventions would be eviscerated."

The above is gibberish, with no basis in scientific fact or statute. It is an argument that would make a buyer of a resold product, where the product manages to self-incorporate a patented feature, liable for infringement. That is absurd. Yet the court endorses it.

The court disagrees with Bowman that a seed "substantially embodies" all later generation seeds, at least with respect to the commodity seeds, because nothing in the record indicates that the "only reasonable and intended use" of commodity seeds is for replanting them to create new seeds. See Quanta, 553 U.S. at 631. Indeed, there are various uses for commodity seeds, including use as feed. While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot "replicate" Monsanto's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants. See, e.g., '247E Patent, col.164 ll.15-29; col. 165 ll.18-20, 30-32, 45-48.

There is no basis in statute for the CAFC's finding. The court is fabricating law on flimsy premise, never explaining how "commodity seeds" can be infringing, when the plants themselves pick up on genetic mutations in the soil.


Hal Wegner observed: "Monsanto v. Bowman is one in a long line of cases where the genetic engineering company has sued individual farmers; many have gone to the Supreme Court but in each case certiorari has been denied."

The CAFC continues its role as corrupt keeper of the plutocracy.

Posted by Patent Hawk at September 21, 2011 8:29 PM | Exhaustion