Supreme Court may hear appeal in biotech patent dispute

By Sara Wyant

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, April 18, 2012 -Several legal affairs “blogs” have been intrigued recently that the U.S. Supreme Court has asked the Justice Department to express its views about an Indiana farmer's appeal from lower court decisions upholding Monsanto's patent on glyphosate-resistant biotech soybeans.

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A U.S. district court in Indiana and the Federal Circuit Court of Appeals both dismissed the contention by attorneys for Vernon Hugh Bowman that the patent had been “exhausted” when he bought Roundup Ready soybean seeds from a grain elevator as an undifferentiated commodity. He contends that he was clear to plant the second-generation seeds sold by growers to elevators, and subsequently to purchasers such as him under Monsanto's technology agreement.

Monsanto persuaded the two lower courts that Bowman nevertheless is liable for infringement by planting the seeds because patent protection “is independently applicable to each generation of soybeans (or other crops) that contains the patented trait.” The company maintained that licensed growers' sales of second-generation seeds to elevators did not exhaust Monsanto's patent rights in those seeds because its technology agreement expressly bars the progeny of licensed seed from being sold for planting, according to the three-judge appeals panel opinion.

The Supreme Court request for the administration's views on the case is significant because, according to legal experts, it increases the likelihood that the justices will agree to hear Bowman's appeal. It only asks the administration to weigh in when a case is a serious candidate for its review. The solicitor general's response is not likely to be filed in time for the court to decide whether to take up the case in the current term, which ends in June. But the response could be in time for the court to hear arguments in the next term beginning in October.


Original story printed in April 18th, 2012 Agri-Pulse Newsletter.

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