Monsanto Wins Case Of Seed Patents; Planting Your Own Legally Purchased & Grown Seeds Can Be Infringing
from the this-is-the-world-we-live-in dept
We’ve written a few times now about Vernan Bowman’s legal fight against Monsanto, concerning patents over so-called “Roundup Ready” seeds, which Monsanto has patented. Here’s the quick version of the details from an earlier post:
The farmer, Vernan Bowman, bought official Monsanto seeds and planted his crops. Yet, Monsanto has rules that say you can’t re-use “Roundup Ready” seeds, but you can apparently sell “second-generation” seeds to grain elevators for use as “commodity seeds,” and doesn’t require that there be any restriction on the sale. Bowman later bought a bunch of such “commodity seeds,” which included some Roundup Ready seeds, and some that weren’t. Bowman was able to determine which of the plants came from Roundup Ready seeds… and then saved those seeds for replanting. Monsanto claimed this was infringement, even though the seeds were legally sold to the grain elevator and then from the elevator to Bowman without restrictions. On top of that, while Bowman had signed an agreement for his original seeds, he did not with this batch (and, indeed, even Monsanto admits he didn’t break the user agreement — just patent infringement for using the seeds).
Note the key things here. Bowman did not break any license agreement over seeds that he bought. He also legally purchased other seeds that had been legally provided to grain elevators to be sold. All he did was plant those legally purchased seeds, for which he was not violating any license agreement, and then harvest and replant the seeds that came from them. And this, apparently, is illegal under our patent system.
Given the fire power that came out in support of Monsanto — including the federal government — it shouldn’t come as a huge surprise that the Supreme Court just gave a complete and total victory to Monsanto. The key issue was whether or not this was a case of “patent exhaustion.” There was a key case a few years ago that mostly said that once a patent holder sells a product, the patent is “exhausted” so that the patent holder can’t demand licensing fees up and down the supply chain. However, they distinguish this case by saying that this is different because it’s a “copy” of the legally purchased seed. I could see how that would make sense if we were talking about someone building a copy of a machine in a garage or something, but this is a seed. Copying itself is what seeds do. That’s kind of their entire purpose.
Yet, throughout the decision, the court (with a decision written by Justice Kagan) acts as if Bowman just built a replica. But that ignores the fact that this is nature we’re talking about seeds that replicate themselves naturally, because that’s what seeds do. The court has no problem with this, but it seems somewhat ridiculous that someone can legally buy something, have it do what it naturally does (and has done for nearly all of history) and then be told that violates a patent. When addressing Bowman’s point concerning the fact that seeds by nature, replicate themselves, they basically brush that aside by noting that Bowman then harvested them. As if he’s supposed to ignore what’s happening?
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… Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium.
The decision keeps restating the myth that patent holders wouldn’t innovate if they weren’t blocked from any and all competition.
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.
That’s a pretty bold statement, and one not supported by any evidence. There are plenty of reasons to innovate that have little to do with patents, and competition in the marketplace is a big one. The process Bowman used above may have created some competition for Monsanto, but hardly in a way that destroyed the value of the patent. Monsanto was still first to market and still could control various uses via licensing agreements. Furthermore, the process that Bowman went through was inexact and required a few years of harvests.
The one thing that the ruling does say, however, is that no one should take this ruling to apply to other self-replicating products, such as technology:
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. … (“[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.
While it’s good that they acknowledge this, you can bet that this case will be cited heavily when the same issue comes up in court concerning self-replicating software and hardware…