Three Briefs Filed in Support of Affirmance in Bowman

Here are links to three Amicus briefs that have been filed in support of affirmance in Monsanto v. Bowman (other briefs filed in the case are provided in earlier posts to this blog)

The Intellectual Property Owners Association argues that "while patent exhaustion would have prevented Monsanto from restricting the distribution or use of [the original seeds that were the subject of an authorized sale by Monsanto], those original seeds were completely consumed (as intended) in the growing of the first crop. The commodity seeds that resulted from the first crop . . . constitute an entirely new manufacturer and, as such, are not subject to the doctrinal patent exhaustion." Their brief also points out that seeds are not the only technologies that would be negatively impacted if "making" is considered an exhausted "use," citing examples such as recombinant host cells used in the production of biological drugs, computer programs, and potentially "self-replicating" nanotechnology.

The New York Intellectual Property Law Association brief provides some background on conditional sales and contributory infringement, and argues that the exhaustion doctrine should not be extended beyond Quanta. The Association goes on to argue that Bowman violated valid and enforceable field of use restraints, and that each successive generation of a patented self-replicating biological material is a separate actionable "making" under 35 U.S.C. § 271(a) .

 
BayhDole25, Inc. describes itself as a nonprofit, nongovernmental organization with a mission of "educating for the powerful social and economic benefits that have continued to flow from technology transfer relating to agricultural biotechnology advances, both in the United States and in developing and developed countries around the world." BayhDole25 argues that that Bowman's activities "represent transactions intended to essentially 'launder' Respondents' Roundup Ready technology through the grain elevator,” and that there are substantial differences between the instant case and Quanta and other president supporting application of the exhaustion doctrine. The brief discusses "the historical social contract for technology transfer that has fueled growth in agricultural productivity and global development." BayhDole25 notes that Monsanto must be compensated for the use of this technology in order to support "long-term investment in new technologies for the continued vibrancy of US agricultural for biotechnology, where the private sector now provides the lion's share of R&D critical to continuing agricultural activity gains.”  They point out the importance of this technology as a means for meeting global challenges associated with population growth and climate change.