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« Biotech/Pharma Docket | Main | ACI Conference on Drug and Medical Device Litigation »

September 22, 2011


"The Federal Circuit thus has once again affirmed that patent exhaustion applies to seeds that are sold and not to progeny seeds that were not sold by the patent owner or not made by authority of the patent owner (for self-replicating seeds). The patency of these distinctions await possible Supreme Court review."


Very much agree. How this distinction survives Quanta (or at least SCOTUS' view in Quanta that the doctrine of patent exhaustion should be applied broadly) escapes me. But so far, SCOTUS has yet to grant a petition for cert. in any of these Monsanto "Round-Up Ready" seed cases.


After the 5,352,605 patent expires this October, will the farmers be able to obtain "generic" roundup resistant seeds? Or will they have to buy it from Monsanto the last year and keep some for planting the next year. If there is no generic, Monsanto would have no incentive to lower the price.

Darrell Fonetnot

Which article was actually sold by Monsanto?

There is something fundamentally wrong with this decision.

Perhaps a notion from plant patents should have come into play - there is a reason why only non-self-reproducing plant patents are allowed.

I understand the rationale of the Federal and Supreme Courts notion that patent exhaustion does not apply when replicable living organisms are purchased for the specific purpose of replicating those traits. I have no sympathy for someone who does this.

What happens, however, where the patented gene passes to another's living organism by natural means. For example a patented pig or ram enters my field through no fault of my own? Wind driven pollination? Flying insect pollination? Seeds blown onto my land in a windstorm? Seeds blowing or washed onto my land after blowing off passing trucks? I realise that I could sue the patent owner for loss caused by having to eradicate the patented gene from my stock or property. But is there a duty of care on my part to identify the fact that my animals or fields have been contaminated? I would be interested in hearing the opinions of patent boffins on this type of situation.


Please go read Seth Waxman's filings in the Organic Grower v Monsanto case - Monsanto will not sure for any of the possible infringements and noone will thus have standing to bring the case - because the case is essentially a law school paradigm and not a real world question or concern.

The farmers cannot have the cake and eat it too. They oppose any "terminator"-type technology that restricts such multiplication of patented trait. They also don't like the restricted use rights.

How is that any different than say, one buys a patented eraser. You can use it, chop it up into small pieces and sell. But you cannot go and try to make the same. The fact that seeds can be easily replicated should not be the reason that the subsequent generations fall under the exhaustion doctrine.


As long as the GM farmer can sue the neighboring non-GM farmer for diluting his transgenic trait, then we can have this discussion.

Dear Darrell:

Monsanto has made public statements (in addition to its court filings) eschewing lawsuits against farmers once the patent(s) expire. As I understand it, Monsanto will also continue to make seeds available, which will then (after the first harvest) be available for replanting. Assuming Monsanto doesn't raise the price of Roundup the costs should come down.

Thanks for the comment.

"Monsanto will not sure for any of the possible infringements and noone will thus have standing to bring the case - because the case is essentially a law school paradigm and not a real world question or concern."

Until "6 and Kev LLC" enters the seed market with supar innovative seeds you mean.

We plan to sue the pants off these poor farmers.

The Monsanto agreement also obligates farmers to buy seeds with Monsanto technology for planting, only from Monsanto-licensed dealers. I wonder why Monsanto didn't go after Bowman for breaching that provision of the agreement.

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