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. Monsantoconcerns 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 infringement.
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 watch.
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