Patent Rights to Genetically Modified Seeds Validated

On May 13, 2013, in the case of Bowman v. Monsanto Co., the U.S. Supreme Court ruled that a farmer could not use Monsanto’s patented genetically altered soybeans to create subsequent crops without paying a fee.

Farmers who buy Monsanto’s patented seeds must generally sign a contract promising not to save seeds from the resulting crop, which means they must buy new seeds every year. The seeds are valuable because they are resistant to the herbicide Roundup, itself a Monsanto product.

Indiana farmer, Vernon Bowman, had signed a contract promising not to save seeds from crops produced with patented seeds purchased from Monsanto. However, Bowman believed he had discovered a loophole. For a second, riskier crop later in the growing season Bowman bought seeds from a grain elevator filled with a mix of seeds in the reasonable hope that many of them contained Monsanto’s patented Roundup Ready gene.

Bowman acknowledged the general principle that there was no right to make a new product with Monsanto’s seeds; but argued that he had used the seeds precisely as they were intended to be used. The Court opined that accepting that theory would create an “unprecedented exception” to the patent exhaustion doctrine. The opinion states, “if simple copying were a protected use, a patent would plummet in value after the first sale of the item containing the invention.”

The competition and antitrust implications of transgenic seeds was one of the topics discussed at the USD Law Review's Antitrust & Competition in America's Heartland Symposium. For additional information see the Law Library prepared Symposium LibGuide.

(This entry was originally written and posted by Darla Jackson)