By Kevin E. Noonan —

In
a paper filed earlier this week by Solicitor General Donald Verrilli, Jr., the
U.S. government has asked the Supreme Court for leave to present ten minutes of
 argument in Bowman v. Monsanto.  The
request is not unusual or controversial — but the apportionment of argument
time requested by the SG is.

In
the paper, the Solicitor asks the Court to alot its ten minutes from Monsanto's
argument time, reducing that time from 30 to 20 minutes.  The rationale for this request is that the
government "mostly" agrees with Monsanto's position that the Court
should affirm the Federal Circuit's decision in Monsanto's favor.  However, the government identifies Bowman's position
that the Federal Circuit's "conditioned sales" doctrine in its Malinckrodt line of cases as an area in
which it agrees with Farmer Bowman — i.e.,
that these decisions are inconsistent with the Court's decision in Quanta Computer v. LG Electronics and asks
to be able to presents its argument on this issue to the Court.  This basis for the request is a little
paradoxical, seeing that the government agrees with Monsanto that the Federal
Circuit's opinion below did not rely on the conditioned sales doctrine and thus
that the doctrine and the Malinckrodt
cases are not at issue before the Court in this case.

Monsanto
has no objection to the government presenting its arguments, but has not
consented to the SG's request, believing a 25-25-10 minute split is more
equitable.  But Farmer Bowman is
unwilling to give the government any of his time, and hence the current
petition to the Court.  Alternatively,
the SG asks the Court to grant it ten minutes of argument in addition to the
thirty minutes for each party.

The
government appears to want to eat its cake and have it, too, but perhaps
believing the Court's grant of certiorari
in the face of the SG's recommendation to the contrary has suggested to Mr.
Verrilli and his staff the Court might benefit from being able to question the
government directly on the issue.  Monsanto may have to take whatever solace it can find in the fact that
the SG's voice will join with theirs in arguing in favor of affirmance.