by Dennis Crouch
Bowman v. Monsanto Company (Supreme Court 2013)
In a short opinion a unanimous Supreme Court has sided with Monsanto in holding that the doctrine of patent exhaustion “does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.”
Read the decision below:
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Bowman v. Monsanto Company, 569 U. S. ____ (2013)
JUSTICE KAGAN delivered the opinion of the Court
Under the doctrine of patent exhaustion, the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. Such a sale, however, does not allow the purchaser to make new copies of the patented invention. The question in this case is whether a farmer who buys patented seeds may reproduce them through planting and harvesting without the patent holder’s permission. We hold that he may not.< ?xml:namespace prefix ="" o />
I
Respondent Monsanto invented a genetic modification that enables soybean plants to survive exposure to glyphosate, the active ingredient in many herbicides (including Monsanto’s own Roundup). Monsanto markets soybean seed containing this altered genetic material as Roundup Ready seed. Farmers planting that seed can use a glyphosate based herbicide to kill weeds without damaging their crops. Two patents issued to Monsanto cover various aspects of its Roundup Ready technology, including a seed incorporating the genetic alteration. See Supp. App. SA1–21 (U. S. Patent Nos. 5,352,605 and RE39,247E); see also 657 F. 3d 1341, 1343–1344 (CA Fed. 2011).
Monsanto sells, and allows other companies to sell, Roundup Ready soybean seeds to growers who assent to a special licensing agreement. See App. 27a. That agreement permits a grower to plant the purchased seeds in one (and only one) season. He can then consume the resulting crop or sell it as a commodity, usually to a grain elevator or agricultural processor. See 657 F. 3d, at 1344–1345. But under the agreement, the farmer may not save any of the harvested soybeans for replanting, nor may he supply them to anyone else for that purpose. These restrictions reflect the ease of producing new generations of Roundup Ready seed. Because glyphosate resistance comes from the seed’s genetic material, that trait is passed on from the planted seed to the harvested soybeans: Indeed, a single Roundup Ready seed can grow a plant containing dozens of genetically identical beans, each of which, if replanted, can grow another such plant—and so on and so on. See App. 100a. The agreement’s terms prevent the farmer from co-opting that process to produce his own Roundup Ready seeds, forcing him instead to buy from Monsanto each season.
Petitioner Vernon Bowman is a farmer in Indiana who, it is fair to say, appreciates Roundup Ready soybean seed. He purchased Roundup Ready each year, from a company affiliated with Monsanto, for his first crop of the season. In accord with the agreement just described, he used all ofthat seed for planting, and sold his entire crop to a grain elevator (which typically would resell it to an agricultural processor for human or animal consumption).
Bowman, however, devised a less orthodox approach for his second crop of each season. Because he thought such late-season planting “risky,” he did not want to pay the premium price that Monsanto charges for Roundup Ready seed. Id., at 78a; see Brief for Petitioner 6. He therefore went to a grain elevator; purchased “commodity soybeans” intended for human or animal consumption; and planted them in his fields.[1] Those soybeans came from prior harvests of other local farmers. And because most of those farmers also used Roundup Ready seed, Bowman could anticipate that many of the purchased soybeans would contain Monsanto’s patented technology. When he applied a glyphosate-based herbicide to his fields, he confirmed that this was so; a significant proportion of the new plants survived the treatment, and produced in their turn a new crop of soybeans with the Roundup Ready trait. Bowman saved seed from that crop to use in his late-season planting the next year—and then the next, and the next, until he had harvested eight crops in that way. Each year, that is, he planted saved seed from the year before (sometimes adding more soybeans bought from the grain elevator),sprayed his fields with glyphosate to kill weeds (and any non-resistant plants), and produced a new crop of glyphosate resistant—i.e., Roundup Ready—soybeans.
After discovering this practice, Monsanto sued Bowman for infringing its patents on Roundup Ready seed. Bowman raised patent exhaustion as a defense, arguing that Monsanto could not control his use of the soybeans because they were the subject of a prior authorized sale (from local farmers to the grain elevator). The District Court rejected that argument, and awarded damages to Monsanto of $84,456. The Federal Circuit affirmed. It reasoned that patent exhaustion did not protect Bowman because he had “created a newly infringing article.” 657 F. 3d, at 1348. The “right to use” a patented article following an authorized sale, the court explained, “does not include the right to construct an essentially new article on the template of the original, for the right to make the article remains with the patentee.” Ibid. (brackets and internal quotation marks omitted). Accordingly, Bowman could not “‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.” Ibid.
We granted certiorari to consider the important question of patent law raised in this case, 568 U. S. ___ (2012), and now affirm.
II
The doctrine of patent exhaustion limits a patentee’s right to control what others can do with an article embodying or containing an invention.[2] Under the doctrine, “the initial authorized sale of a patented item terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625 (2008). And by “exhaust[ing] the [patentee’s] monopoly” in that item, the sale confers on the purchaser, or any subsequent owner, “the right to use [or] sell” the thing as he sees fit. United States v. Univis Lens Co., 316 U. S. 241, 249–250 (1942). We have explained the basis for the doctrine as follows:“[T]he purpose of the patent law is fulfilled with respect to any particular article when the patentee has received his reward . . . by the sale of the article”; once that “purpose is realized the patent law affords no basis for restraining the use and enjoyment of the thing sold.” Id., at 251. Consistent with that rationale, the doctrine restricts a patentee’s rights only as to the “particular article” sold, ibid.; it leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. “[T]he purchaser of the [patented] machine . . . does not acquire any right to construct another machine either forhis own use or to be vended to another.” Mitchell v. Hawley, 16 Wall. 544, 548 (1873); see Wilbur-Ellis Co. v. Kuther, 377 U. S. 422, 424 (1964) (holding that a purchaser’s “reconstruction” of a patented machine “would impinge on the patentee’s right ‘to exclude others from making’ . . . the article” (quoting 35 U. S. C. §154 (1964 ed.))). Rather, “a second creation” of the patented item “call[s] the monopoly, conferred by the patent grant, into play for a second time.” Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 346 (1961). That is because the patent holder has “received his reward” only for the actual article sold, and not for subsequent recreations of it. Univis, 316 U. S., at 251. If the purchaser of that article could make and sell endless copies, the patent would effectively protect the invention for just a single sale. Bowman himself disputes none of this analysis as a general matter: He forthrightly acknowledges the “well settled” principle “that the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Brief for Petitioner 37 (citing Aro, 365 U. S., at 346).
Unfortunately for Bowman, that principle decides this case against him. Under the patent exhaustion doctrine, Bowman could resell the patented soybeans he purchased from the grain elevator; so too he could consume the beans himself or feed them to his animals. Monsanto, although the patent holder, would have no business interfering in those uses of Roundup Ready beans. But the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). And that is precisely what Bowman did. He took the soybeans he purchased home; planted them in his fields at the time he thought best; applied glyphosate to kill weeds (as well as any soy plants lacking the Roundup Ready trait); and finally harvested more (many more) beans than he started with. That is how “to ‘make’ a new product,” to use Bowman’s words, when the original product is a seed. Brief for Petitioner 37; see Webster’s Third New International Dictionary 1363 (1961) (“make” means “cause to exist, occur, or appear,” or more specifically, “plant and raise (a crop)”). Because Bowman thus reproduced Monsanto’s patented invention, the exhaustion doctrine does not protect him.[3]
Were the matter otherwise, Monsanto’s patent would provide scant benefit. After inventing the Roundup Ready trait, Monsanto would, to be sure, “receiv[e] [its] reward” for the first seeds it sells. Univis, 316 U. S., at 251. But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly. And farmers themselves need only buy the seed once, whether from Monsanto, a competitor, or (as here) a grain elevator. The grower could multiply his initial purchase, and then multiply that new creation, ad infinitum—each time profiting from the patented seed without compensating its inventor. Bowman’s late-season plantings offer a prime illustration. After buying beans for a single harvest, Bowman saved enough seed each year to reduce or eliminate the need for additional purchases.
Monsanto still held its patent, but received no gain from Bowman’s annual production and sale of Roundup Ready soybeans. The exhaustion doctrine is limited to the “particular item” sold to avoid just such a mismatch between invention and reward.
Our holding today also follows from J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124 (2001). We considered there whether an inventor could get a patent on a seed or plant, or only a certificate issued under the Plant Variety Protection Act (PVPA), 7 U. S. C. §2321 et seq. We decided a patent was available, rejecting the claim that the PVPA implicitly repealed the Patent Act’s coverage of seeds and plants. On our view, the two statutes established different, but not conflicting schemes: The requirements for getting a patent “are more stringent than those for obtaining a PVP certificate, and the protections afforded” by a patent are correspondingly greater.
J. E. M., 534 U. S., at 142. Most notable here, we explained that only a patent holder (not a certificate holder) could prohibit “[a] farmer who legally purchases and plants” a protected seed from saving harvested seed “for replanting.” Id., at 140; see id., at 143 (noting that the Patent Act, unlike the PVPA, contains “no exemptio[n]” for “saving seed”). That statement is inconsistent with applying exhaustion to protect conduct like Bowman’s. If a sale cut off the right to control a patented seed’s progeny, then (contrary to J. E. M.) the patentee could not prevent the buyer from saving harvested seed. Indeed, the patentee could not stop the buyer from selling such seed, which even a PVP certificate owner (who, recall, is supposed to have fewer rights) can usually accomplish. See 7 U. S. C. §§2541, 2543. Those limitations would turn upside-down the statutory scheme J. E. M. described.
Bowman principally argues that exhaustion should apply here because seeds are meant to be planted. The exhaustion doctrine, he reminds us, typically prevents a patentee from controlling the use of a patented product following an authorized sale. And in planting Roundup Ready seeds, Bowman continues, he is merely using them in the normal way farmers do. Bowman thus concludes that allowing Monsanto to interfere with that use would “creat[e] an impermissible exception to the exhaustion doctrine” for patented seeds and other “self-replicating technologies.” Brief for Petitioner 16.
But it is really Bowman who is asking for an unprecedented exception—to what he concedes is the “well settled” rule that “the exhaustion doctrine does not extend to the right to ‘make’ a new product.” See supra, at 5. Reproducing a patented article no doubt “uses” it after a fashion. But as already explained, we have always drawn the boundaries of the exhaustion doctrine to exclude that activity, so that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. See, e.g., Cotton-Tie Co. v. Simmons, 106 U. S. 89, 93–94 (1882) (holding that a purchaser could not “use” the buckle from a patented cotton-bale tie to “make” a new tie). That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.
Nor do we think that rule will prevent farmers from making appropriate use of the Roundup Ready seed they buy. Bowman himself stands in a peculiarly poor position to assert such a claim. As noted earlier, the commodity soybeans he purchased were intended not for planting, but for consumption. See supra, at 2–3. Indeed, Bowman conceded in deposition testimony that he knew of no other farmer who employed beans bought from a grain elevator to grow a new crop. See App. 84a. So a non-replicating use of the commodity beans at issue here was not just available, but standard fare. And in the more ordinary case, when a farmer purchases Roundup Ready seed qua seed—that is, seed intended to grow a crop—he will be able to plant it. Monsanto, to be sure, conditions the farmer’s ability to reproduce Roundup Ready; but it does not—could not realistically—preclude all planting. No sane farmer, after all, would buy the product without some ability to grow soybeans from it. And so Monsanto, predictably enough, sells Roundup Ready seed to farmers with a license to use it to make a crop. See supra, at 2, 6, n. 3. Applying our usual rule in this context therefore will allow farmers to benefit from Roundup Ready, even as it rewards Monsanto for its innovation.
Still, Bowman has another seeds-are-special argument: that soybeans naturally “self-replicate or ‘sprout’ unless stored in a controlled manner,” and thus “it was the planted soybean, not Bowman” himself, that made replicas of Monsanto’s patented invention. Brief for Petitioner 42; see Tr. of Oral Arg. 14 (“[F]armers, when they plant seeds, they don’t exercise any control . . . over their crop” or “over the creative process”). But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops. As we have explained, supra at 2–3, Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium. He purchased beans from a grain elevator anticipating that many would be Roundup Ready; applied a glyphosate-based herbicide in a way that culled any plants without the patented trait; and saved beans from the rest for the next season. He then planted those Roundup Ready beans at a chosen time; tended and treated them, including by exploiting their patented glyphosate resistance; and harvested many more seeds, which he either marketed or saved to begin the next cycle. In all this, the bean surely figured. But it was Bowman, and not the bean, who controlled the reproduction (unto the eighth generation) of Monsanto’s patented invention.
Our holding today is limited—addressing the situation before us, rather than every one involving a self replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. Cf. 17 U. S. C. §117(a)(1) (“[I]t is not [a copyright] infringement for the owner of a copy of a computer program to make . . . another copy or adaptation of that computer program provide[d] that such a new copy or adaptation is created as an essential step in the utilization of the computer program”). We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances. In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct. We accordingly affirm the judgment of the Court of Appeals for the Federal Circuit.
[1] Grain elevators, as indicated above, purchase grain from farmers and sell it for consumption; under federal and state law, they generally cannot package or market their grain for use as agricultural seed. See 7 U. S. C. §1571; Ind. Code §15–15–1–32 (2012). But because soybeans are themselves seeds, nothing (except, as we shall see, the law) prevented Bowman from planting, rather than consuming, the product he bought from the grain elevator.
[2] 2The Patent Act grants a patentee the “right to exclude others from making, using, offering for sale, or selling the invention.” 35 U. S. C. §154(a)(1); see §271(a) (“[W]hoever without authority makes, uses, offers to sell, or sells any patented invention . . . infringes the patent”).
[3] This conclusion applies however Bowman acquired Roundup Readyseed: The doctrine of patent exhaustion no more protected Bowman’sreproduction of the seed he purchased for his first crop (from a Monsantoaffiliated seed company) than the beans he bought for his second (from a grain elevator). The difference between the two purchases wasthat the first—but not the second—came with a license from Monsanto to plant the seed and then harvest and market one crop of beans. We do not here confront a case in which Monsanto (or an affiliated seed company) sold Roundup Ready to a farmer without an express license agreement. For reasons we explain below, we think that case unlikely to arise. See infra, at 9. And in the event it did, the farmer might reasonably claim that the sale came with an implied license to plantand harvest one soybean crop.
Your absence is deafening Leopold.
“I doubt Monsanto would go after such a farmer anyway so my guess is it’s a moot point and a non-issue.”
Not moot at all – as I understand it, Monsanto has in fact done so.
This case was just a bit better dressed for Monsanto to drive harder.
Kagan mentioned the situation in her opinion regarding persons who do not “control” the process of replication. She probably had in mind the innocent farmer you are referring to. I doubt Monsanto would go after such a farmer anyway so my guess is it’s a moot point and a non-issue.
Recourse? None (currently, well, not exactly…
😉
). And you are correct – Monsanto has no contract with the elevators. But they do now have some great leverage!
That must be worth a few of those big sacks of money…
Notice for past damages on article claims, yes.
But I’m interested in the idea of Monsanto trying to force a grain elevator to patent mark the bags.
My understanding is the elevators don’t have a contract with Monsanto (the farmers do). If this is the case, what recourse does Monsanto have against the grain elevators to make the mark?
Since always – one kind or another – marking gives constructive notice, and for items that cannot be marked – like seeds, marking of the container will typically suffice. Other types of notice include the filing of suit.
That being said, I am pretty sure the graineries do not mark the bags they sell.
Hmmm, sounds like an easy target for Monsanto: Hey graineries, put a warning on the bags that hte product may be covered by patent xxxxxx. Or else.
Since when is notice required in order to recover damages for patent infringement?
ah yes, a reference to the infamous (lack of) sight for the arrow shooter.
LOL – still working on those “stronger intellect” items?
‘If you can see whether I’m singing or not, you’ve sharper eyes than most,’ Humpty Dumpty remarked severely.
Nice Leopold, but do you want to actually try to make a point here (other than you like to charge at the red cape of “anon said,” that is).
Let me guess, you are still working on your definitions of the “stronger in intellect” items, right?
LOL – don’t expect me to hold my breath for that.
‘They’ve a temper, some of them — particularly verbs: they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That’s what I say!’
– Humpty Dumpty
…and unless you think the Monsanto invention itself is a staple article or commodity of commerce – note, not other things like regular seed, but the invention (we really need to keep our eyes open here).
Maybe you want to take a stab at defining “is.”
(modifying of course, the well established rule of a “staple article or commodity of commerce suitable for substantial noninfringing use”)
“Likewise, if a patentee sells a patented article that can’t possibly be used without replicating itself, then I suppose you could put together an argument that exhaustion extends further than the first item. (I’m less certain that this second argument will get you anywhere, though, but we’ll have to wait and see what the facts are in a real case)”
Isn’t this the argument related to the VERY second post of this thread…
Did the court leave the door wide open for more arguments on whether copying is an “essential step” or whether the copying happened outside the control of the licensee?
She left the door open for these arguments in cases with different facts. Sure, if the copying is out of the control of the accused infringer, then there would seem to be room for an argument that the infringer didn’t do the making. Likewise, if a patentee sells a patented article that can’t possibly be used without replicating itself, then I suppose you could put together an argument that exhaustion extends further than the first item. (I’m less certain that this second argument will get you anywhere, though, but we’ll have to wait and see what the facts are in a real case.)
Kagan says this is a narrow ruling, which seems to mean there will be lots of copying cases where exhaustion may apply.
Kagan said that the ruling applies to situations like the Bowman one. All she’s saying is that there is a possibility that there might be other situations that could result in a different outcome. That’s not a particularly unusual way to look at a ruling.
It seems the last paragraph of the opinion undoes the clarity of the rest of it.
I disagree. The default rule, stated over and over in the case, is that you can’t make copies of a patented article without a license, either express or implied. The Court clearly says that Bowman’s situation does not trigger any exception to that rule. The Court further says that there might be other situations that could trigger an exception. But we don’t know what any of those situations are, yet. Again, this is not unusual.
LOL – I forgot to add, “fascinating.”
Not according to certain pundits here (who, of course merely state that without more).
Did the court leave the door wide open for more arguments on whether copying is an “essential step” or whether the copying happened outside the control of the licensee? Kagan says this is a narrow ruling, which seems to mean there will be lots of copying cases where exhaustion may apply. It seems the last paragraph of the opinion undoes the clarity of the rest of it.
LOL – Amazing. no wait, the word: “fascinating.”
It is completely explained by existing law. There is absolutely nothing new in the dicta on page 10.
Yes, anon, it appears that you require that somebody explain page 10 to you.
I won’t be the one to do it.
lol
NWPA–
Totally incorrect.
Fascinating.
These were my words:
“Yes, he is an infringer, if but for the act of planting, a patent claim would not be infringed, and if he does not hold a valid license to engage in the otherwise-offending activity…however, the patent owner will not be able to recover damages unless they can prove notice.
In this case, the CAFC found that Bowman had actual notice as of June 11, 1999.”
There is absolutely nothing contradictory to this in the SC opinion.
Again, WHERE do you guys get your material? Overactive imaginations distorting some dicta?
You really have no idea why it is that you are wrong.
It is not possible for me to maintain a suggestion that I never advanced.
Alun–
Complete rubbish. Fascinating.
he can point to a certain trait as the contaminant.
The mere act of including in one’s product a trait that some people don’t want isn’t actionable. If the trait was introduced into the farmer’s crop as a result of other farmers’ activity, and natural events, and it doesn’t cause any more objective harm than seed without that trait, you’ll have a hard time suing Monsanto.
Anybody who represents to his customers that his crop has a particular pedigree should have some reasonable assurance that he can make good on his promise. That’s clearly not the case here, Monsanto or not.
(aren’t all desires subjective to some degree or another?)
No, they’re not. Your example of amylase corn sounds like it would render the crop unfit for an objective purpose. The worst effect of eating Roundup-Ready tofu, as far as anybody can tell, is that someone might feel bad about it. If they even know. A good sign of how little objective harm is caused to a party is how hard they have to work to find out they’ve been “harmed” in the first place.
How is any of that relevant to the theory that one can sue Monsanto for “damages” based on a purchaser’s subjective desire to either pay extra for (not even quite 100%) non-Monsanto crop or not buy the crop at all?
The farmer sues the biotech producer/patent holder when his crop is rejected by a buyer — usually because there was a threshold amount of adventitious material, that threshold was surpassed, and he can point to a certain trait as the contaminant. The buyer is paying a premium for an identity preserved crop, whether you believe that “desire” is subjective (aren’t all desires subjective to some degree or another?)
many of the traits being considered for deregulation, or already deregulated, could be considered “inherently dangerous”, if dangerous includes the ability to physically destroy the contaminated crop.
How is any of that relevant to the theory that one can sue Monsanto for “damages” based on a purchaser’s subjective desire to either pay extra for (not even quite 100%) non-Monsanto crop or not buy the crop at all?
Not to mention that the patented seed is no more “inherently” “dangerous” than any other seed that farmer would have planted in its place, apart from some customers who are eager to overpay for crops as long as they don’t come specifically from Monsanto.”
Part of my job is to participate in APHIS stakeholder meetings, and I can attest to the fact that many of the traits being considered for deregulation, or already deregulated, could be considered “inherently dangerous”, if dangerous includes the ability to physically destroy the contaminated crop. Take corn amylase, as I mentioned previously. If even one kernel of amylase corn gets into a batch of non-amylase corn, it can ruin the entire batch. The same for “pharming” crops – biotech crops that produce vaccines or other medicinal products. And there are plenty of non-edibles in the pipeline as well — lots and lots of GMO trees. It really is about more than just “consumer preference”.
“you need to use an extra agent (glyphosate)”
You mean, use an extra agent that itself is now in the commns after having its enjoyment of the patent exclusivity period?
Sort of like extending the patent rights on the use of that item, is it not? Wouldn’t it be more in accord with patent law that ANY sense of its use should be considered a complete non-factor?
Hey IANAE – I’ve now skimmed the holding in the Canada case. It’s still not clear to me whether the defendant used RoundUp on his rapeseed crop.
Even more interesting, it wasn’t really clear to the court.
So guess what the court said? It DOESN’T MATTER if you don’t use RoundUp. The patents do not require use of RoundUp. Just the growing of RoundUp ready seeds.
The patented purpose of the Roundup-Ready soybean (or whatever crop) is to be resistant to herbicide.
Didn’t SCOTUS in Bowman reaffirm its decision in J.E.M. Ag Supply that you can’t separate the seed from the genetically-engineered trait? So isn’t the patented purpose of the seed to grow into a commodity-producing plant that is resistant to a particular herbicide?
Sure, but if by “cross-contamination” you mean “is likely to exist in the world next to others”, then you’ve got the equivalent of suing Ford for negligent (or even diligent but unlucky) drivers.
I’m actually trying to understand what you mean, and I may be one coffee-cup short this morning (so I’m not just being snarky.) If Ford’s cars are designed to be safely driven, then even if someone runs into you, your beef is with the other party, not Ford. But if Ford’s vehicles are designed to drive wherever they like, regardless of whether they crash into other cars, then that would be a design flaw (or an intentional tort?) You’re not harmed by the car driving safely – only when it crashes into you and dents your car. Monsanto (or any biotech) creates a product designed to produce pollen (carrying its patented traits) that travels around freely, not distinguishing the like crops planted by the purchaser of the seed from other neighboring crops. Of course, this is no different than what has been done by seed producers for many years. However, previously, when the pollen from one farmer’s crops “trespassed” onto another farmer’s crop, and reproduced, or created a copy of the first farmer’s crop, that didn’t result in patent infringement on the part of the second farmer.
But I think we’re moving away from my original point: Cross-contamination between “identity preserved” crops, whether GE, non-GE, or organic, is a problem recognized to such an extent that the USDA has a committee formed and funded to promote solutions, including perhaps a compensation scheme for harmed parties. However, until there is a non-litigious option, farmers currently have only the courts through which to seek damages. If the claim is that the seed is defective, then the producer, and even the creator, will be brought into court. Obviously, one defense is that the purported injured party is actually a patent infringer. I’m guess I’m curious as to why you think that won’t happen?
I don’t know whether he admitted it and I haven’t myself read the case, which is why I caveated with “so far as I understand”.
I came onto that case sideways on an article about Seth Waxman. Waxman had argued in Monsanto’s defense in one of the organic farms “DJ-like” cases, and seemed to suggest (in replies to questions by J.Bryson) that Monsanto had made a big mistake in the case of Percy Schmieser (sp? Schmeizer).
In that article (NPR IIRC) it was said that Monsanto never produced any actual evidence against his use of RoundUp. That could well have been NPR’s way of hiding the ball, if he had actually admitted use. But that article also said the standard for infringement applied by the court was that he “knew or should have known” that he had at least some RR genes in his crop.
A terrible decision. Patents on self-replicating seeds ought indeed to be more or less worthless. It may amuse some to say that the bean did it, but it’s still true.
That’s like ki11 the patient in order to cure him thinking, IANAE.
Sit down. Take a breather.
Yet Monsanto was never able to garner any evidence (so far as I understand) showing use of RoundUP in its case against ol’ Percy.
He admitted it, didn’t he? And as pervasive as people insist Roundup-Ready seed is, the conventional stuff is inherently just as pervasive. If your field contains nothing but Roundup-Ready, there aren’t a whole lot of ways that could have happened.
Sounds like they had a pretty strong case against Vernon. Which reminds me, wasn’t Percy the Canadian guy?
“bred to be as promiscuous as possible”
Ned – we better hurry.
per JMD, they certainly are dangerous to the bees.
(never mind the causal chain effects – Ned, how is our fish project coming along?)
“Again, Bowman is the poster-child for a bad actor. That’s why Monsanto went after him.”
Yet Monsanto was never able to garner any evidence (so far as I understand) showing use of RoundUP in its case against ol’ Percy.
Didn’t stop them from suing him for patent infringement.
“believing that every infringement is a crime against humanity, anon. ”
LOL – nice strawman.
“not likely to be interested in filing lawsuits on principle alone”
You are flailing – and badly. Explain the case against single Farmer Bowman and “big sacks of money” there.
Gee, maybe the same type of message applies…
WAKE UP.
LOL – WHAT??
The patented purpose of their seed is to solve precisely that problem.
You know, like not get away with infringement…
You can go right on believing that every infringement is a crime against humanity, anon. But Monsanto is an economic actor, and is not likely to be interested in filing lawsuits on principle alone. I’ve tried to explain why it makes no sense for them to go after elevator operators. You don’t have to agree with me. We can just wait and see how many elevator operators get sued.
“Monsanto is actually the solution to that problem.”
LOL – WHAT??
“Except that the theory here is liability for patentees of these items.”
Um, the patentees are the manufacturers of the seed. Generally speaking. Or (in the case of Pioneer Seeds), manufacturing under license from Monsanto/patentee.
How do you know whether or not the GM seed is inherently dangerous? No, I’m not “anti-GMO”, but an awfully large swath or developed countries are taking a hold on the question of whether or not they might be found to be dangerous (and as an aside – I did not myself say they were dangerous, inherently or otherwise – I just noted that this seems to be the legal doctrine closest to what Oregonian was talking about).
Maybe you should again – the “them” refers to…
(hint: not what you think it does)
El toro’
a bit like the doctrine of strict liability for producers of items
Except that the theory here is liability for patentees of these items. Otherwise, you’d be suing the next farmer over. The Supremes were pretty clear that he’s the one making all those plants.
Not to mention that the patented seed is no more “inherently” “dangerous” than any other seed that farmer would have planted in its place, apart from some customers who are eager to overpay for crops as long as they don’t come specifically from Monsanto.
If you farm in farm country, all that big scary inherent danger is already there, and predates Monsanto by a fair bit.
Another vacuous Malcolm comment.
Attaboy.
Hmmm, maybe pay them something for selling their patented (and non-exhausted) item. You know, like not get away with infringement…
Starting to sound a bit like the doctrine of strict liability for producers of items that are inherently dangerous even when produced exactly according to spec.
Yah. I used to work for DeKalb in the 70’s and early 80’s. When we had the kids out de-tasseling the “female” rows for the hybrids, we had it drilled into us over and over that we could not allow them to miss any – not one single tassel.
The meme was that a single tassel could improperly pollinate 1000 acres, given a couple of dry, windy days. I don’t know if that’s 100% factual, but that was the corporate line.
So – back to your guy who does realize a “benefit” of the patented GM corn (or rapeseed, etc.) line but doesn’t seek it at all – it literally blows in on the wind. It is a real problem. Maybe the SC will need to come up with some sort of “unavoidability” doctrine.
“We’ll find out soon enough, won’t we?”
Criminy – bad actor or not, Farmer Bowman is also a poster child of the little folk.
WAKE UP.
“you are reading into the text your imagination”
There is no text from you explaining page 10 for me to read into.
So… by “completely explained” you mean “not explained at all.”
Gotcha.
Monsanto DOES go after the little folk.
Again, Bowman is the poster-child for a bad actor. That’s why Monsanto went after him. He posed an existential threat to a key part of their business model. When you threaten a business like that, they tend to make some noise (as you personally know).
We can just watch and see what happens next, Trollboy. I’m no fan of Monsanto but I doubt they will use this case to start harassing organic farmers for stray Round-up resistant soybean plants in their crops. I think they have better things to do with their time and money.
As posted by others, the organics are far larger catches
If you say so. We’ll find out soon enough, won’t we?
Is the patented purpose of the car to rear-end other cars? Did Apple create iPhones for chucking at people or for making phone calls?
The patented purpose of the Roundup-Ready soybean (or whatever crop) is to be resistant to herbicide.
Incidentally, there are probably a lot of car patents whose purpose has to do with rear-ending other cars. And a lot of phone patents whose purpose has to do with how they handle physical impact with other objects. It’s clear that both are designed at least in part for those functions.
If cross-contamination is an expected outcome of the GE seed, you sue the creator of the seed if you’re harmed by that outcome.
Sure, but if by “cross-contamination” you mean “is likely to exist in the world next to others”, then you’ve got the equivalent of suing Ford for negligent (or even diligent but unlucky) drivers.
And that’s not even considering that seeds will cross-contaminate just as effectively whether they’re Monsanto’s seed or not. If you want to make sure nothing grows in your field but what you planted, Monsanto is not the cause of your problem. Monsanto is actually the solution to that problem.
“carefully limited its opinion to the facts of this case which included the critical fact that the grain elevators were not selling seed to farmers who then planted the seeds.”
Sorry Ned, I believe you are reading way too much into the idea that grain elevators generally can’t market their product as seed-grain. The fact is, farmers do still buy it for such, and it is not an unusual practice limited to Mr. Bowman.
I also believe you are reading too much into “our holding today is limited”. Look at the other for instance examples she gave, they are in completely different fields.
I think that my proposed organic (non-RoundUp utilising) farmer who inadvertently plants RR seed purchased on the open market, thus producing additional generations of RR seeds, does infringe Monsanto’s patent. And I don’t think that Kagan et al. would have found otherwise under the law.
Go back to the passages where she very carefully says that the “principle which decides this case” against him is the principle that says exhaustion does not extend the right to make new product.
That’s pretty clear. It’s the correct result.
So, looking at my proposed organic farmer: he is making new patented product. Exhaustion does not apply. He is infringing the patent.
Whether Monsanto can obtain any damages from said organic farmer is another matter, roundly scoffed at by the peanut gallery yesterday.
Wrong. Completely explained.
Your problem is that you are reading into the text your imagination, and believing it to mean what it does not necessarily mean.
I recognize that. However, in the case of glyphosate-resistance, you need to use an extra agent (glyphosate) in order to utilize the patented trait. But what about traits, such as the production of a pesticide, that do not require any additional steps by the licensee/purchaser? If your non-GE corn is cross-pollinated with pesticide-producing corn, you automatically gain the benefit, even if you didn’t ask for it. How will SCOTUS view such cases?
too crabbed.
Trollboy discovered a new word. Watch out!
How many “big sacks of money” do you think will be coming from Farmer Bowman?
Monsanto just sent a very strong and important message to users of soybeans for seeds. I dare say that Monsanto values that message at more than a few “big sacks of money.” As the Supreme Court expressly pointed out, Farmer Bowman’s actions threatened their entire business.
But it’s pretty clear what Monsanto wants those farmers to do, i.e., to plant their crops with licensed seeds. What exactly is it that you think Monsanto wants those grain elevator operators to do differently?
LOL. You might want to read IANAE’s last paragraph again. Self-sp1ke!
More sense (and cents) than to sue a single independent farmer – gee, how likely is that to happen?
WAKE UP.
Leopold, your view here too is much too crabbed.
How many “big sacks of money” do you think will be coming from Farmer Bowman?
Is the patented purpose of the car to rear-end other cars? Did Apple create iPhones for chucking at people or for making phone calls? Soybeans are bred to self-pollinate, which makes their chance of cross-contaminating their neighbors soybean crops relatively remote. But open pollinators such as corn, alfalfa, canola, sugar beets? They’re bred to be as promiscuous as possible, which of course leads not only to cross-contamination of commercial crops, but herbicide/pesticide resistance in nearby wild species. But is this a feature or a bug?
If a farmer with a technology license agreement from Monsanto follows all the “best practices” laid out in her license and still ends up contaminating her neighbor’s crops, that appears to indicate a defect with the product. If the car rear-ends you because the brakes fail due to design defect, you sue Ford. If cross-contamination is an expected outcome of the GE seed, you sue the creator of the seed if you’re harmed by that outcome. Until 2014, seed creators are also the patent holders, in most instances, so the most likely targets of litigation. Of course, after the patents expire, things get messy.
And, yes, only hippies care about identity preservation – because the only bad thing that could happen is you get a little herbicide resistance mixed into your corn flakes. Oh, or maybe a little amylase (kind of takes away crunch, however.)
I realize getting in touch with reality is a bit difficult for you IANAE (what with all the Calvinball face sp1kes you receive), but please get something right when you post. Go to a grocery store: organic food is more expensive.
But that alone doesn’t get the plaintiff big sacks of money.
I thought “strict liability” meant the patentee always wins.
If/when the farmer, after determining that the contamination bore the “signature” of a certain patent holder’s patented traits, seeks to recover damages from the patent holder,
They probably won’t sue for infringement until they stop laughing.
Hey, someone rear-ended my car. I know, I’ll sue Ford Motor Co. to recover my damages. I’m sure to win that case, because … why, exactly?
What if someone throws an iPhone at your head? Sue Apple? Sue Samsung, on the off chance the iPhone infringes a Samsung patent?
This idea that patentees are liable for what other people do with patented stuff after they’ve sold it has been floating around this board for some time, but nobody has yet shown any actual law that it’s based on.
Still, my heart weeps for hippies everywhere whose perfectly edible crops have their nucleotides arranged in not quite the right order, so they would rather not pay inflated prices for them.
Remember – this type of infringement is strict liability.
Yes, it is. But that alone doesn’t get the plaintiff big sacks of money.
OK, fine. They’re generally selling seeds to different customers, in a different market, so they’re not primarily competing with Monsanto. In fact, Monsanto wants there to be a healthy commodity seed market, as there wouldn’t be any demand for Monsanto’s seed otherwise.
The point is that you’re right – there is probably some infringement by the elevator operators. But do you really think it makes sense for Monsanto to sue them?
“That’s wishful thinking, Ned.”
LOL – and you are applying that very type of thinking – see my last comment above.
Remember – this type of infringement is strict liability.
“he grain elevators are selling commodity seeds, not planting seeds, so they’re not competing with Monsanto.”
No. You are confusing use with item sold.
LB, The Supreme Court seem to suggest that the grain elevators would be infringers if they sold seed for planting.
Where do you see that, Ned?
Ned, you persist in reading things into the case that aren’t there.
The Supreme Court centered its opinion on the harm to Monsanto.
Of course they centered the opinion on the harm to Monsanto. If people are allowed to make all they want of a patented product, there is no point in having the patent. All they’ve done here is confirm the straightforward rule that you can’t manufacture a patented product without a license. The holding of the case is right there, in black and white: “Because Bowman thus reproduced Monsanto’s patented invention, the exhaustion doctrine does not protect him.”
They suggested that if the planting and harvesting were for a different purpose, not harmful to Monsanto, that they result might be different.
That’s wishful thinking, Ned. Yes, the Supreme Court said that their holding is limited to the situation before them. There is nothing special about that.
“that did not harm Monsanto,”
Integrate Wickard v Filburn and realize that there is no possibility of making that does not harm Monsanto.
The very act of making means that you are not buying from Monsanto – intent is irrelevant, as it should be for infringement.
(kudos for bringing up the point about sales – even though Prof. Crouch attempted to dismiss the point, that question is very real and very pertinent)
Patent the man’s seed, you own the man.
Fair enough, but that’s why I said “those particular beans.” Yes, the grain elevators are probably selling small amounts of unauthorized seed. They should be selling less of it in the future, if this decision dissuades others from doing what Bowman has been doing.
But it would still be silly, and likely ineffective, for Monsanto to go after the grain elevators for their unintentional infringement. First, you have a huge problem of proof – you have to demonstrate exactly how much of their seed is RoundUp Ready and how much of that is coming from unlicensed crops. Then you have the problem of damages – the grain elevators are selling commodity seeds, not planting seeds, so they’re not competing with Monsanto.
Oregonian, the Supreme Court seem to suggest that they would not hold activity that did not take advantage of the Roundup ready nature of the seeds to be an infringement.
LB, you persist in not understanding this case. The Supreme Court centered its opinion on the harm to Monsanto. They specifically cited the fact that Bowman was planting seeds for the purpose of making more seeds, using Roundup ready, for the purpose of selling those seeds in competition with Monsanto. They suggested that if the planting and harvesting were for a different purpose, not harmful to Monsanto, that they result might be different.
LB, The Supreme Court seem to suggest that the grain elevators would be infringers if they sold seed for planting. How is this consistent with exhaustion?
Actually Malcolm, the Supreme Court clearly suggested that it was critical to his decision that Bowman was making more seeds then he was planting, and then selling those additional seeds, somewhat pure because of his use of Roundup ready, in competition with Monsanto. They seem to suggest that if one were to plant the seeds, albeit of a patented variety, for different purpose that did not harm Monsanto, that the result would be different. (Again, all this has to do with the the question of “making,” and not with the question of exhaustion.)
LB you should also consider that Supreme Court limited its opinion to the facts in this case where Bowman was planting the patented seed for the purposes of making more seed and selling that additional seed. They specifically suggested if the planting and harvesting of seed was for a different purpose, where the patentee was not being harmed, that there would be no infringement. They specifically seem to suggest that there would be a fair use exception if the intent were not to take advantage of the Roundup ready resistant nature of the seeds for producing more seeds than one plants and then selling them in competition with Monsanto.
It cannot be said that simply planting the seeds without more is infringement. The Supreme Court did not hold that.