NEW YORK, May 17, 2013 -- In a recent article posted by Law360, Baker Botts intellectual property partner and firmwide life sciences section chair Jennifer Gordon, discussed the importance of the U.S. Supreme Court’s decision in Bowman v. Monsanto Co. et al.
The U.S. Supreme Court ruled Monday that an Indiana farmer violated Monsanto Co.’s patents on herbicide-resistant soybeans by generating progeny soybeans (the seeds of soybean plants) from soybeans purchased from Monsanto, striking down his argument that the agribusiness giant had exhausted its control of the genetically modified seed by virtue of the sale of the first generation soybeans. The act of infringement was the impermissible, and therefore infringing, making of subsequent generations of seed.
“The decision is of significance, first and foremost, to anyone in the agricultural sector who holds patents on genetically modified plants and seeds,” Gordon said in a written commentary sent to Law360. “These patent owners can now rest assured that purchasers of their patented seeds or plants will not be able to make progeny generations and defend against claims of patent infringement by relying on the doctrine of patent exhaustion. The doctrine has never permitted the purchaser of a patented item to MAKE a copy of it. Had the decision been otherwise, it would have deterred the investment that it takes to create genetically modified seeds and plants. If a purchaser could simply buy the first generation and then make many more generations with impunity, the innovator would be unfairly deprived of a return on its investment.”
“As noted above, the Court explicitly limited its decision to the facts of the case,” Gordon added. “There are other “copyable” technologies (e.g., genetically modified microorganisms and animals, vaccines and software) that may attempt to make use of today’s holding by analogy. One thing the Court did today inferentially -- they recognized a recombinant DNA based invention is eligible for patenting, consistent with its holding in Diamond v Chakrabarty.”
To view Gordon’s bio, please click here.
The complete Law360 article is available here.
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