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Thursday, January 31, 2013
by John T. Aquino
What does a Supreme Court case about the sale of soybean
seeds have to do with life sciences? A lot, says the U.S. Solicitor General and
life sciences attorneys.
Bowman v. Monsanto concerns
farmer Vernon Hugh Bowman who bought seed from one of Monsanto's licensed seed
producers and did a first and then, much later, a second seeding. Monsanto
claimed Bowman had infringed the patent and the technology agreement that was in
force when he had purchased the seed. The lower courts found there had been
The “first sale” or
“patent exhaustion” doctrine provides that the first unrestricted sale by a
patent owner of a patented product exhausts the patent owner's control over
that particular item. Bowman petitioned the Supreme Court for review,
arguing that the U.S. Court of Appeals for the Federal Circuit erred by refusing to find patent exhaustion in
patented seeds after an authorized sale and by creating an exception to the
doctrine of patent exhaustion for self-replicating technologies. Against the SG’s
advice, the court granted review.
In his amicus brief
to the court filed Jan. 8, the SG argued that the Federal Circuit’s ruling that
patent exhaustion did not apply should be affirmed and stated that not
affirming the ruling would also affect the “enforcement of patents for
man-made cell lines, DNA molecules, some nanotechnologies, and other
technologies that involve self-replicating features.” Companies marketing
patented recombinant plasmids and transformed cell lines capable of replication
“would lose much of their value if purchasers of patented bacteria or other
self-replicating products could reproduce and sell those items free from the
restraints of patent law,” the SG wrote.
Howard Bremer told BNA that the court’s affirming the
Federal Circuit’s ruling would be the best solution and would prompt the
continuation of the “motivation factor
for the private sector to license self-replicating technologies for development
and marketing under the auspices of licensing arrangements with universities
and thereby serve the public interest.”
This is a case to
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