Monsanto Co. v. Vernon Bowman (Fed. Cir. 2011)
The Federal Circuit has again affirmed that Monsanto’s genetically modified seeds patents can be used to stop farmers from saving and replanting the GM seeds. Here, the particular issue involved patent exhaustion, and the court ruled that the authorized purchase of seeds did not include the right to replant the second generation. The legal theory here follows the same notion of copyright in book buying. When someone purchases a book, they do not typically also receive a right to make further copies. There are some debatable differences — Monsanto’s soybeans are alive and have the ability to self-replicate. However, the court previously rejected those arguments.
Monsanto’s two patents at issue in this case are U.S. Patent Nos. 5,352,605 (“’605 Patent”) and RE39,247 (“’247 Patent”). The ‘605 patent expires in October 2011, and the ‘247 patent patent expires in 2014.
As the Bowman and Scruggs cases suggest, Monsanto has alway aggressively enforced these patent rights. However, Monsanto has announced that once the patents expire, it will no longer enforce its existing technology licenses. At that point, farmers will be free to save their GM soybean seeds and replant them at will. In addition, the expiration of the patents also allows others to manufacture other Roundup Ready organisms. Obviously, the point here is that the patents’ expiration will likely further expand the use of GM organisms. Up to now, Monsanto’s profit motive has seemingly helped organic and non-GM producers in their quest to keep their seed lines separate. Patent expiration will dramatically change this status quo.