What is in this article?:
- The Court's decision to review Bowman v. Monsanto Co., has created substantial discussion in agriculture regarding the scope of patent rights for agricultural biotechnology.
- What really has the agricultural law community talking is the planting of seeds not "saved" by the farmer from the previous growing season, but rather the purchase of seeds from a grain elevator (known as commodity seed).
First sale rights?
The owner of the patent, after the "first sale" to me, has extinguished the patent rights in that particular chair. I could not, however, take that patented chair, reverse engineer the patented technology in the chair, and then manufacture and sell my own version.
The difference is that the patent rights are exhausted in the specific chair I bought, while the patent laws exclude me from making copies of chairs on my own to sell to others.
But what about "self-replicating" products such as soybeans? If I buy a bag of soybean seeds from the seed dealer, I obviously intend to plant them and create more seeds--that is, after all, the point of farming. Yet the readers of farmdoc certainly understand that farmers cannot save and replant soybean seeds year to year.
And what about the First Sale Doctrine? Would that not allow the purchaser of the seed to make whatever use they want of the seed pre- or post-harvest similar to the patented chair example?
The answer, at least under current law, is no. In simplest terms, one does not "buy" the patented seeds, but rather purchases a license from the patent holder to use the patented technology embedded in the seed itself. This is a limited-use license that places restrictions on the license holder's use of the seed, e.g., no saving seed for replanting the next growing season.
This is a well settled area of law as multiple courts have upheld limited use licenses that restrict seed saving. See Monsanto Co. v. McFarling, 363 F.3d 1336 (Fed. Cir. 2004); Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006).