Supreme Court granted certiorari in Bowman v. Monsanto

The Supreme Court recently granted certiorari in Bowman v. Monsanto, an important case which involves agricultural biotechnology. The Federal Circuit ruled in favor of Monsanto, and allows agricultural biotechnology companies to recoup their investment in developing traits for seeds that farmers can harvest and replant, such as soybeans.

Monsanto has relied upon patent and contract law to prevent replanting of second-generation patented seeds. Purchasers of seeds containing a patented Monsanto trait, such as Roundup Ready soybean, are required to sign a contract agreeing not to save second-generation seeds for replanting. Under the contract, farmers are allowed to harvest the seeds for use as food or feed.

In Monsanto v. Bowman, the Federal Circuit rejected Bowman’s argument that his activities were protected by the first sale doctrine. The court held that his purposeful planting and growing of the second-generation seeds constituted more than simply “using” the patented seed, but impermissibly “making” patented product in violation of Monsanto’s patent.

In his petition for certiorari, Bowman argued that the ability to make second-generation seed is an inherent characteristic of seeds, and that his natural and foreseeable use of the seeds to produce second-generation seeds is permitted under the first sale doctrine, regardless of whether he sells the seed for use as feed or replants it.

The interpretation of the first sale doctrine advocated by Bowman would severely limit the ability of biotechnology companies like Monsanto to recoup their sizable investment in developing agricultural traits.  Stay tuned for more developments in the case.

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