Monday, January 21, 2013

Briefs Filed by Monsanto and the Solicitor General in Bowman v. Monsanto


 
Last week, I posted briefs filed by petitioner Vernon Bowman and his amici in Bowman v. Monsanto. Today, I'm posting respondent Monsanto's brief, along with a brief filed by the US Solicitor General in support of affirmance (i.e., in support of Monsanto).

Monsanto argues that the first sale doctrine (i.e., patent exhaustion) is inapplicable to the soybeans grown by Bowman because they are second-generation seeds, and were not the subject of an authorized sale.  Monsanto further argues that if the Court were to accept petitioner's argument, it would result in utility patent owners receiving less protection than is provided under the Plant Patent Act and the Plant Variety Protection Act, which would be contrary to Congress's intent and Supreme Court precedent holding that utility patent owners receive greater protection than is provided under the PPA or PVPA. The brief concludes by explaining that contractual remedies alone are inadequate to encourage innovation in "readily replicable technologies," (a more accurate label than the one used by Bowman, i.e., "self-replicating technology").


The US Solicitor General argues that the authorized sale of one article embodying a patented invention (i.e., a patented seed) does not exhaust the patentees right to control the creation of other articles embodying the same invention (i.e., subsequent generations of that seed). The Solicitor General characterizes the Federal Circuit's Mallinkrodt line of cases applying a "conditional sale" doctrine as erroneous, but that this “do[es] not cast doubt on the correctness of the decision below.”

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