Bowman v. Monsanto Co. (11-796)

argument 11-796

Bowman v. Monsanto Co.

Supreme Court of the United States 1h 9m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the legal definition of patent exhaustion and how does it apply to patented seeds?

John G. Roberts 0:01

We'll hear argument next this morning in case eleven seven hundred ninety-six, Bowman versus Monsanto Company. Mr. Walters.

Joshua P. Thompson 0:09

Mr Chief Justice, and may it please the court. Patent exhaustion provides that once a patented article is sold, it passes outside the protection of the Patent Act and is available to be used by the purchaser to practice the invention. Now what's the invention here? The invention is a a bit of DNA that when inserted into a soybean seed makes that seed and all the plants that grow from that seed resistant to the active ingredient and roundup. Now the only way to practice that invention is to plant the seed and to grow more seeds.

John G. Roberts 0:45

Why in the world would anybody spend any money to try to improve uh uh a seed if as soon as they sold the the first one anybody could grow more uh and uh have as many of those seeds as they want?

Joshua P. Thompson 0:59

I agree, no one would do that, and I don't think that's the situation here. I think uh we have and we've explained uh how uh uh pot uh respondents here can protect their invention through contracts. Uh they don't have to sell it outright. Uh they can sell it through uh uh agency model, but the more I think it's

John G. Roberts 1:16

That's true that's true in the case of any patented article, right? Correct. So the patent system uh is based, I think, on a recognition that contractual protection is inadequate. uh to encourage invention. But.

Joshua P. Thompson 1:30

Well, uh part of the uh patent policy as well is to protect the purchaser, and that's been part of this course law for more than a hundred and fifty years. Uh under uh respondents' theory, any farmer who grows a soybean seed is infringing the patent but for the grace of Monsanto, and that's a a lot of farmers in this country when we have over ninety percent of the acreage uh that's roundup ready. So under Monsanto's theory there's really no limit uh by the exhaustion doctrine.

Antonin Scalia 1:57

I I I didn't understand that last thing. Any any farmer who who plants and grows soybeans is violating the patent?

Joshua P. Thompson 2:05

Is is uh infringing under license uh by Monsanto. Let's just take the

Antonin Scalia 2:09

first. Yeah, I I thought that their claim is th that he only violates the patent if he tries to grow additional seeds from his first crop. Right? Is isn't that the the only claim

Joshua P. Thompson 2:21

here? The the the reach of Monsanto's theory is that once that seed is sold, even though title has passed to the farmer and the farmer assumes all risks associated with farming that they can still control the ownership uh of that seed, control how that seed is used.

Antonin Scalia 2:38

No not not that seed. It's it's different seed. That seed is done. It's been planted in the ground and and has grown other seeds. It's the other seed we're talking about. It's it's not the very seed that was sold. Right.

Joshua P. Thompson 2:53

That that's correct, Your Honor. But if we don't apply uh uh if if if exhaustion is eliminated rather for the progeny seed. then uh you're taking away uh the ability of uh people to exchange these goods freely in commerce. You have essentially a servitude on on these things that are exchanged, and every grain elevator who makes a sale uh is is infringing that well I I

Ruth Bader Ginsburg 3:14

think you may be right in the way you characterize Monsanto's argument, and um I have great difficulties with characterizing it that way, as Justice Galia's But Monsanto can still prevail. If you say that there is a patent infringement if he plants it for seed and uses the seed. To replant. That's that's that's not as far as Monsanto goes, but it seems to me it's a uh it's one way. uh to characterize their argument and to make it sensible.

Joshua P. Thompson 3:50

If you assume that there is exhaustion in the uh seeds that are sold to the farmer, and let's take our particular case here, Mr. Bowman uh went to a grain elevator and he bought from the grain elevator without restriction seeds to uh and it was his purpose to plant them. Now the only way that he can make use if you assume in the first instance that there's exhaustion to the seeds that Mr Bowman purchased from the grain elevator, You're taking away any ability for him to use that seed or use the invention. Let's take, for example, claim one hundred thirty, which is at the supplemental appendix nineteen.