Thursday, January 17, 2013

Briefs Filed by Petitioner and His Amici in Bowman v. Monsanto

In Bowman v. Monsanto, the Supreme Court will have the opportunity to address the extent to which the doctrine of patent exhaustion applies to progeny of patented recombinant seeds. For background on the case, see this previous post.
Here are links to briefs recently filed by petitioner Bowman and his amici, with some brief commentary:

Petitioner (Vernon Bowman) argues that an authorized sale of recombinant seeds exhausts patent rights in progeny seeds that were not themselves the subject of an authorized sale. He bases this argument on a theory that subsequent generations of seeds are "embodied” in the first-generation authorized seeds.  Bowman is apparently attempting to leverage the Supreme Court's questionable use of the term "embodies" with respect to method patents in Quanta.  He also argues that production of progeny seeds does not constitute "making" the seeds because the use of genetically modified seeds inherently results in the production of progeny seeds. Bowman contends that contract law provides adequate remedies to owners of patents on self-replicating technologies.
Center for Food Safety argues that extending patent exhaustion to progeny seeds will benefit farmers by curtailing Monsanto's patent enforcement actions targeting farmers. The Center also claims that extending the patent exhaustion doctrine in this way will benefit scientific research and innovation in agriculture, and lower the cost of farming. The Center further contends the Federal Circuit's decision is contrary to Quanta, and reiterates petitioner's argument that producing progeny seed constitutes use of the patented seed, not making it, and hence falls within the scope of patent exhaustion. The amici voice is concerned that farmers whose fields have been "contaminated” by Monsanto's patented seeds could be subject to infringement lawsuits.
The American Antitrust Institute argue that the Federal Circuit's decision is contrary to Supreme Court precedent, particularly Quanta, and departs from long-standing Congressional patent policy.  They warn that the Federal Circuit's decision "portends dangerous unintended consequences" for other industries, particularly the computer software industry. They suggest that Monsanto should learn from the software industry, and engage in "effective product differentiation and efficient third-degree price discrimination" in order to counter the threat posed by the ease with which their products can be replicated. They contend that Monsanto could have avoided its need to rely on patents by not working with soybean seeds and other inbred seed lines, and confining their activities to hybrid seeds (i.e., corn) that do not produce true copies of themselves. Somewhat surprisingly, the Institute suggests that Monsanto "could have developed its ‘terminator’ gene, which would have rendered progeny seeds sterile." “Terminator” is a pejorative term for Genetic Use Restriction Technology (GURT), highly controversial technology that Monsanto pledged not to use in 1999.
The Automotive Aftermarket Industry Association et al. are concerned that affirmance of the Federal Circuit's decision weakens the patent exhaustion doctrine. This brief was filed on behalf of companies that market automotive replacement parts and refurbished inkjet cartridges.
Knowledge Ecology International essentially argues that effective patent protection is not necessary for self-replicating genetically engineered crops, because "a plethora of alternative mechanisms to patent regimes exist to reward research and development."  For example, they argue that an inventor "can still protect his investment through contractual agreements governing post-sale uses” (while at the same time acknowledging that contract law would not have helped in this case, due to a lack of privity between Bowman and Monsanto).  The plethora of alternative mechanisms includes "sui generis systems of rewards or cash innovation inducement prizes," which KEI characterizes as "viable alternatives to the patent system."  They voice concern that "even plants exhibiting the genetically modified trait found in the wild as a result of cross-pollination, would fall under the patent rights the patent holder.)
The Public Patent Foundation expresses concern that under the Federal Circuit's ruling, "contaminated farmers are infringers," and "Monsanto's customers routinely make and sell new infringing articles." In a previous post, I discussed a lawsuit that the Public Patent Foundation has filed against Monsanto on behalf of a variety of groups including associations of organic farmers.


Anonymous said...

For what it's worth, while transgenic hybrids cannot be productively replanted by farmers regardless of legal protection, they can be cannabalized and their transgenic traits sold by competeting companies at a fraction of the R&D time and cost required to create the novel trait in the first place. I don't see how overturning this protection would avoid severly chilling a technology/market that, as it is, is already only profitable for the most massive market traits.


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