By: Gene Quinn (IPWatchdog.com)
Last week, the United States Supreme Court heard oral arguments in the matter of Bowman v. Monsanto. For a recitation of the facts and procedural history, see Argument Summary. For purposes of this article suffice it to say that the case is about a farmer who did not want to buy Monsanto’s patented seed. He acquired seed from a grain elevator knowing that at least some would be Monsanto patented seed. He planted all the seed and applied Roundup® to kill everything but the Monsanto crop. He then harvested the progeny seeds for future use.
At the outset of the oral argument, the attorney for Bowman — Mark Walters — began by trying to make the case about the patent exhaustion doctrine, as was done in the briefs. Not more than 10 seconds into his opening, the first question was presented by Chief Justice John Roberts, who asked:
“Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”
After a quick volley, the Chief Justice responded:
“So the patent system is based, I think, on the recognition that contractual protection is inadequate to encourage invention.”
Things did not start well for Bowman, and in fact got much worse.
Just seconds after getting past the Chief Justice, Justice Scalia chimed in to correct Walters. who had just said:
“Under Respondent’s theory, any farmer who grows a soybean seed is infringing the patent but for the grace of Monsanto.”
That is clearly not what Monsanto is arguing, and that Justice Scalia called Walters on such a fallacious statement shows that he was well prepared and knowledgeable about the facts and claim. Scalia said:
“I thought that their claim is he only violated the patent if he tries to grow additional seeds from his first crop. Right? Isn’t that the only claim here?”
This bantering between Walters and Scalia was a consistent theme. Later during Walters rebuttal time. the two went at it again. Walters, in speaking with Justice Breyer, said that Monsanto simply didn’t want Bowman to be able to use seed that he lawfully purchased. Exasperated, Justice Scalia pounced:
“[Y]ou’re saying that you are preventing him from using it. He’s not prevented from using it. He can use it for what it’s meant for, for raising a crop. He just cannot use the product — that new crop — for replanting. That’s all. He has to sell that new crop for feed or for some other purpose. But to say that he’s prevented from using what he has bought is simply not true. He can use it, plant it, and harvest the crop.”
And with that comment from Justice Scalia. the argument came to a substantive conclusion.
Perhaps far more noteworthy was the fact that Justice Breyer did not seem to be buying the Bowman argument advanced by Walters. This is significant because Breyer is viewed as hostile toward patents and patentees, something that has consistently been borne out over time. Most alarming for Bowman, perhaps was when Breyer said:
“I am saying the problem for you here, I think, is that, infringement lies in the fact that he made generation three. It has nothing to do with generation two. That was just a coincidence. But that is in fact the way he made these seeds. But he can sell, resell generation 2, he can do whatever he wants with it.
If he sterilizes it and uses them in a circus, he can do it. The only thing he cannot do is he cannot create generation 3, just as he couldn’t use generation 2 seeds to rob a bank.
You know, there are certain things that the law prohibits. What it prohibits here is making a copy of the patented invention. And that is what he did. So it’s generation 3 that concerns us. And that’s the end of it.”
If Bowman loses Breyer, he has no chance.
Justices Ginsburg, Kagan and Sotomayor also all seemed hostile toward the Bowman position. Justice Kennedy remained largely silent, and Justices Alito and Thomas did not ask any questions.
Indeed, the case revolves around the making of progeny seeds, not the purchase of seeds as a commodity from the grain elevator. It seems that Monsanto is poised for an important patent win. Not surprisingly, Monsanto is represented by Seth Waxman, who I have profiled on IPWatchdog as the go-to Supreme Court patent advocate.
Tags: Bowman, chief justice roberts, justice alito, justice breyer, justice kagan, Justice Kennedy, justice scalia, justice sotomayor, justice thomas, Monsanto, patent, patents, SCOTUS, Seth Waxman, Supreme Court