Vernon Bowman, a 75 year old Indiana farmer, thought he had found a loophole in Monsanto’s patent covering Roundup® resistant soybeans. But the United States Supreme Court recently extinguished any hope Bowman had of getting around Monsanto’s patent rights.  The Supreme Court rejected the Bowman’s argument that Monsanto’s patent protection was “exhausted” upon their initial sale of the seeds.  If Bowman wants Roundup® resistant soybean plants in the future, he will be required to purchase his annual supply of soybeans from Monsanto just like every other soybean farmer.

You may not recognize the name Monsanto, but you probably recognize their product.  Monsanto is the company that produces the popular weed killing spray Roundup®.  Because of their familiarity with the weed killing mixture, they also developed and patented a type of soybean that is resistant to Roundup®.  However, one problem exists when trying to enforce a patent covering a seed. If you sell a person one seed, she can plant that seed and produce more of the seed naturally, thus eliminating motivation to return to the patent holder for more seeds.  The self-replicating nature of seeds would allow a farmer to buy the seeds one season and then obtain a whole new set of seeds from his crop for the next season, thus defeating the patent monopoly to which Monsanto is entitled.  If every farmer did this, Monsanto would be limited to a few short years of exclusivity, after farmers would just produce their own seed.

Bowman thought he had found a loophole by purchasing a mix of soybean seeds from a grain elevator that was typically used for animal feed.  This mix was much less expensive than purchasing from Monsanto.  Bowman banked on the fact that most of the seeds were likely to be Roundup® resistant.  He then planted the animal stock mix and proved his bet was correct.  Most of the subsequent soybean crop was Roundup® resistant just like the patented seeds from Monsanto.  Bowman thought his clever trick would allow him to circumvent Monsanto’s patent protection requiring farmers to annually purchase their patented seeds.  Bowman figured he had games the system and would be able to use his secondary seed source.

Unfortunately for Bowman, Monsanto found about it and sued Bowman for patent infringement.  In court, Bowman’s attorney attempted to raise a counter argument using the “patent exhaustion” doctrine.  The patent exhaustion doctrine says that once an unrestricted, authorized sale of a patented article occurs, the patent holder’s exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint.  The U.S. Supreme Court rejected this application of the exhaustion doctrine stating, “The exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied).”

Part of the policy behind the patent system is to encourage research and development that might not otherwise occur.  The period of exclusivity provided by a patent is the reward for undertaking such expense.  If farmers like Bowman could just buy the patented seeds once and then reproduce their own, Monsanto would not be able to recover the millions of dollars they invested in developing these special soybeans.  The Court took this policy into consideration in determining the outcome of this case.

Whether you are a farmer looking for freedom to operate without fear of patent infringement or you have invented the next super soybean, please contact the experienced patent attorneys at Clegg Law.