US Supreme Court Edges Toward Reviewing Extent Of GMO Patents

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It’s unclear if the US Supreme Court wants to address yet another controversial issue in patent law, but on 2 April, the court took a small step in that direction. That’s when the court formally asked [pdf] the US Justice Department to opine on whether the high court should grant certiorari in Bowman v. Monsanto Co.

The case began when a farmer, Vernon Bowman, purchased some soya beans that were genetically modified to resist certain herbicides. Bowman planted the beans, and when the crop came up, he saved some of the plants’ seeds and planted them for subsequent crops.

Monsanto, which owned a patent on the seeds, objected. The biotech giant asserted that by using the second (and later) generations of seeds, Bowman was committing patent infringement.

Bowman replied that his actions were perfectly legal, because Monsanto’s patent rights were exhausted upon the first sale of the seeds.

Patent rights in a good are exhausted by a lawful sale, Monsanto conceded, but the company argued that the exhaustion covered only those seeds sold by Monsanto – the first generation of seeds.

The Federal Circuit, often called America’s patent court, agreed with Monsanto. The court held in 2011 that by growing new seeds, Bowman created “newly infringing article[s]” that were not sold by Monsanto and thus not covered by patent exhaustion.

Bowman asked the US Supreme Court [pdf] to review this ruling and to decide how patent exhaustion applies to patented GMOs.

The Supreme Court hasn’t decided yet whether it will take the case. Instead, the court on 2 April asked the Solicitor General, who represents the US government before the Supreme Court, to provide an opinion on whether the court should hear the case.

Asking for the Solicitor General’s opinion signals that the court is interested in a case. Studies have found that when the Solicitor General’s opinion is requested, that significantly increases the odds the Supreme Court will decide to hear a case.

Steven Seidenberg is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 15 years. He is based in the greater New York City area and may be reached at info@ip-watch.ch.

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