Transcript of Oral Argument in Bowman v. Monsanto: Where's Patent Exhaustion for Self-Replicating Patented Seeds?~pj Updated 2X
Groklaw 2013-03-15
Summary:
I know the media in general are saying that Mr. Bowman is almost certain to lose, judging by the questions asked by the justices. I disagree that questions asked by judges mean anything certain, by the way, but in any case some of the questions asked evidenced a deep understanding of the unusual aspects of the facts of this case and the dangers they pose.
This is a case the fact pattern of which has never come up before. While Monsanto tries to compare Roundup Ready seeds to software and vaccines, the truth is there's never been a case before about a patented invention that in the normal course of events naturally reproduces itself.
And what Mr. Bowman's attorney, Mark P. Walters, points out -- particularly at the end -- is that Monsanto's position removes patent exhaustion entirely from the picture, in that when you buy -- as opposed to licensing -- a patented product, there is supposed to be an end to the patent owner's rights. But Monsanto claims that while there is a transfer of title, buyers must agree to a "Technology Agreement" which places conditions on use. Can it have it both ways, sale and license? The only way to use the invention here is to plant and grow the seeds. And Monsanto is claiming rights not only to generation 1 seeds but every generation after that. You can't plant those generation 2 seeds for a crop without infringing the patent, they claim, even if you bought them from somebody else.
As Patently O earlier pointed out, "Both the district court and the Court of Appeals for the Federal Circuit held that the exhaustion doctrine does not apply to new copies of a patented product created by the accused infringer." However, Mr. Walters argues, if that applies in this situation, where is the exhaustion of patent rights in this picture? These are self-replicating seeds. It's not the same as copying a million copies of someone's software. It's just doing what farmers do. Can Monsanto legally void the patent exhaustion doctrine in such a fact pattern? Can it force farmers to farm differently than they have from the beginning of time? We're talking about 90% of all soybeans planted in the US being from Monsanto's patented seeds, after all. How do you avoid infringing now? You'd have to buy new seeds from Monsanto every planting. Think of what that means.
These are the right questions, at least, and I believe at least some of the justices understood it.