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ARTICLE · 04 JUNE 2013

IP Update, Vol. 16, No. 5, May 2013

McDermott Will & Emery
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In a narrow ruling that reaffirms the scope of patent protection over seeds, and possibly over other self-replicating technologies, the U.S. Supreme Court held that a purchaser of patented seeds may not reproduce them through planting and harvesting without the patent holder’s permission.

United StatesIntellectual Property
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Edited by Paul Devinsky and Rita Weeks

PATENTS

Patents / Exhaustion Defense

Patent Exhaustion Rejected: Patented Seed Purchaser Has No Right to Make Copies

Bowman v. Monsanto Co.

by Paul Devinsky, Cynthia Chen, Ph.D., and Lincoln Mayer

In a narrow ruling that reaffirms the scope of patent protection over seeds, and possibly over other self-replicating technologies, the U.S. Supreme Court held that a purchaser of patented seeds may not reproduce them through planting and harvesting without the patent holder's permission. Bowman v. Monsanto Co., Case No. 11-796 (Supr. Ct., May 13, 2013) (Kagan, J.).

In this case, Monsanto asserted two of its patents that cover genetically modified soybean seeds that are resistant to herbicide (Roundup Ready® seeds). Monsanto broadly licenses its Roundup Ready® soybean seeds under agreements that specify that the farmer "may not save any of the harvested seeds for replanting, nor may he supply them to anyone else for

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