Wednesday, September 21, 2011

Summary judgment against farmer Bowman affirmed by CAFC in Monsanto v. Bowman

This is another case involving N-phosphonomethylglycine- (commonly known as “glyphosate”) based herbicides, such as Monsanto’s Roundup® product, brought by Monsanto against a farmer-customer.

The CAFC noted:

Thus, the doctrine of patent exhaustion did not bar the infringement claims in McFarling or Scruggs. Similarly, here, patent exhaustion does not bar an infringe- ment action. Even if Monsanto’s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready® technology and the next generation of seed develops, the grower has created a newly infringing article. See, e.g., ’247E Patent, col.164 ll.15-29. “The fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.” Scruggs, 459 F.3d at 1336. The right to use “do[es] not include the right to construct an essentially new article on the template of the original, for the right to make the article remains with the patentee.” Jazz Photo Corp. v. Int’l Trade Comm’n, 264 F.3d 1094, 1102 (Fed. Cir. 2001). The court disagrees with Bowman that a seed “substantially embodies” all later generation seeds, at least with respect to the com- modity seeds, because nothing in the record indicates that the “only reasonable and intended use” of commodity seeds is for replanting them to create new seeds. See Quanta, 553 U.S. at 631. Indeed, there are various uses for commodity seeds, including use as feed. While farm- ers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants. See, e.g., ’247E Patent, col.164 ll.15-29; col. 165 ll.18-20, 30-32, 45-48


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