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    US Perspectives
    US Supreme Court Edges Toward Reviewing Extent Of GMO Patents

    Published on 13 April 2012 @ 3:59 am

    By for Intellectual Property Watch

    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.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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