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Genetically modified seeds are big business for Monsanto, and the Federal Circuit Court of Appeals ruled this week that the genetically modified foods giant can enforce its seed patents against farmers planting the progeny of those seeds.
Monsanto invented and developed technology for genetically modified Roundup Ready® soybeans that exhibit resistance to glyphosate based herbicides, such as Monsanto’s Roundup® product. Patents cover different aspects of this Roundup Ready® technology.
Monsanto’s licensed producers sell Roundup Ready® seeds to growers for planting. All sales to growers, whether from Monsanto or its licensed producers, are subject to a standard form limited use license, called the Monsanto Technology Agreement.
Under the Technology Agreement, Monsanto restricts the grower's use of the licensed Roundup Ready® seed to a single commercial crop season because the patented Roundup Ready® genetic trait carries forward into each successive seed generation.
Although the express terms of the Technology Agreement forbid growers to sell the progeny of the licensed Roundup Ready® seeds, or "second-generation seeds," for planting, Monsanto authorizes growers to sell second-generation seed to local grain elevators as a commodity, without requiring growers to place restrictions on grain elevators' subsequent sales of that seed.
The defendant in this case, Vernon Bowman, purchased and planted seeds from one of Monanto's licensees, Pioneer Hi-Bred, in compliance with the Technology Agreement from 1999-2007. In 1999, Bowman also purchased commodity seed from a local grain elevator, Huey Soil Service, for a late-season second-crop. Bowman applied glyphosate-based herbicide to the fields in which he had planted the commodity seeds to control weeds and to determine whether the plants would exhibit glyphosate resistance.
Bowman confirmed that many of the plants were, indeed, resistant. In each subsequent year, from 2000 through 2007, Bowman treated his second-crop with glyphosate-based herbicide. Unlike his first-crop, Bowman saved the seed harvested from his second-crop for replanting additional second-crops in later years. He also supplemented his second-crop planting supply with periodic additional purchases of commodity seed from the grain elevator.
Bowman candidly explained his practices with respect to his second-crop soybeans in various communications with Monsanto's representatives. When Monsanto sued him for patent infringement, Bowman responded that Monsanto's patent rights were exhausted with respect to Roundup Ready® genetically modified seeds that are present in grain elevators as undifferentiated commodity seed, reports Reuters.
The Federal Circuit Court of Appeals disagreed, and upheld a district court judgment of $84,456 against Bowman.
Bowman is contemplating an appeal. Do you think the full Federal Circuit Court of Appeals, or the Supreme Court, would reach a different conclusion?