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.