Supreme Court Grants Certiorari in Genetic Seed Patent Case

On October 5, 2012, the United States Supreme Court granted certiorari in Bowman v. Monsanto Co. (Sup. Ct. Dkt. No. 11-796).  The Bowman case,  657 F.3d 1341 (Fed. Cir. 2011), and then-pending petition for certiorari were discussed by Professor Daryl Lim in his excellent article on transgenic seeds and the antitrust-patent interface, ” Rebooting the Bean,” which appears in the Agriculture and Food Committee’s Fall 2012 newsletter.  Vernon Bowman, an Indiana soybean farmer, was successfully sued for patent infringement after he saved and planted the progeny seeds from a crop that he had grown from undifferentiated seeds — some containing patented traits and others that did not — that he had purchased from a grain elevator that had imposed no restrictions on Bowman’s use of the seeds.  Bowman’s petition for certiorari asked the Supreme Court to consider two issues:  

“‘[w]hether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale, and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?'”  Professor Lim’s article observed that:  “The Bowman case has been identified as one of the most important patent cases before the Supreme Court.  One reason for this is that the Federal Circuit’s holdings [in Bowman] were not merely confined to transgenic seeds but implicate the universe of self-replicating genetic technologies.”

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