Before the Court of Appeals for the Federal Circuit [CAFC] in the Bowman case about RoundUp Ready soybeans, exhaustion had been argued and Timothy B. Lee had noted
Last year, the United States Court of Appeals for the Federal Circuit ruled, as it had on several previous occasions, that patent exhaustion did not cover second-generation seeds. The Supreme Court has now asked the Solicitor General, the official in charge of representing the Obama administration before the Court, to weigh in on the case.
The CAFC had noted in Bowman:
“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.”
A person in Bowman's position would be both using and making the seeds.
Lee pointed to an issue concerning the near omnipresence of the presence of the seeds, an almost after-the-fact industry standard:
In a world where 94 percent of soybeans in circulation are descended from Monsanto’s genetically engineered seeds, it might be hard for farmers who didn’t want Monsanto’s seeds even to buy seeds that were not patent encumbered.