Review of Intellectual Property Law Blog

Monsanto’s Position Looking Strong After Oral Arguments

By Alex Lutzow on Saturday, February 23rd, 2013
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Bowman v. Monsanto is just the latest of many patent cases that has found its way to the Supreme Court’s docket. The question posed to the court was, essentially, what constitutes infringement of a patent to a patented gene in a plant, that inevitably will be planted and will reproduce itself. Also at issue is when those rights are “exhausted”. The oral arguments took place this Tuesday, February 19, 2013.

Bowman started the day on the defensive. While Justice Stevens may have gotten top billing for his joking comment referencing Justice Oliver Wendell Holmes’ infamous words in Buck v. Bell positing that, “[m]aybe three generations of seeds is enough,” Chief Justice Roberts’ opening question seemed to mirror the feelings of the rest of the Court. He bluntly said, ” 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?” And indeed that was the question every Justice on the Court wanted answered.

While it may have started out in jest, Breyer’s three generations argument was not limited to the realm of entertainment. It was the basis of a significant number of his questions including saying, “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.” Justice Ginsberg also liked Breyer’s categorization saying, “there’s another law that says you cannot make copies of a patented invention. And that law you have violated when you use [generation 2] to make generation 3.”

While at times the Court attempted to give Bowman’s attorney, Mark Walters, the opportunity to draw an analogy to other self-replicating technologies, he never fully explored this path. There may have been a Hail-Mary lifeline out there somewhere in the form of software patents (perhaps in a RAM-ROM copying analogy), but that is all it is, a long shot. Bowman certainly had an uphill climb coming in, and it looks no smaller after Tuesday.

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