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Monsanto
One Soybean Farmers Supreme Court Challenge and the Future of Self-Replicating Technologies
Monsanto Sells Roundup Ready Soybeans to Farmers Directly and Licenses Its Technology to Seed Producers
Monsantos Technology Agreement Restricts the Use of Roundup Ready Seeds to a Single Commercial Crop Season
The licensed grower agrees: to use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season; to not supply any of this seed to any other person or entity for planting; to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting; and to not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data, or seed production. But, farmers may sell soybeans they grow in the commodity market.
Because Intels License from LG Authorized the Sale to Quanta, LGs Patent Rights Were Exhausted
The authorized sale of an article that substantially embodies a patent exhausts the patent holders rights.
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Thus, the doctrine of patent exhaustion did not bar the infringement claims in McFarling or Scruggs. Similarly, here, patent exhaustion does not bar an infringement action.
Monsanto v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011)
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The Federal Circuit Held that Growing New Seeds Makes a Newly Infringing Article
Under 35 U.S.C. 271(a), whoever without authority makes, uses, offers to sell, or sells any patented invention . . . infringes the patent. Even if Monsanto's patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsantos Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.
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Bowmans Supplemental Brief Argued that the Federal Circuit Relied on Its Pre-Quanta Cases
The damages awarded in the district court were for the use of the commodity seeds, not for the making of newly infringing seeds. Had the Federal Circuit concluded (as it should have) that Monsanto's patent rights to seeds sold by the grain elevator were exhausted, it would have been required to vacate the judgment and remand for review of the damages award based on the number of infringing units Bowman allegedly made by planting.
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As any Indiana farmer will confirm (especially one living through the current drought), acres of commodity soybeans planted as a risky second crop late in the growing season may not produce any progeny.
Other?
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Thank You
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