Bowman v. Monsanto - Oral Argument - February 19, 2013

Bowman v. Monsanto

Media for Bowman v. Monsanto

Audio Transcription for Opinion Announcement - May 13, 2013 in Bowman v. Monsanto

Audio Transcription for Oral Argument - February 19, 2013 in Bowman v. Monsanto

John G. Roberts, Jr.:

We will hear argument next this morning in case 11-796, Bowman v. Monsanto Company.

Mr. Walters.

Mark P. Walters:

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.

It is available to be used by the purchaser to practice the invention.

Now, what's the invention here?

The invention is a bit of DNA that, when asserted into a soy bean seed, makes that seed and all the plants that grow from that seed resistant to the active ingredient in Roundup.

Now, the only way to practice that invention is to plant the seed and to grow more seeds.

John G. Roberts, Jr.:

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

Mark P. Walters:

I agree no one would do that, and I don't think that is the situation here.

I think we have, and we have explained how Respondents here can protect their invention through contracts.

They don't have to sell it outright.

They can sell it through an agency model, but I think the more important--

John G. Roberts, Jr.:

That's true, that's true in the case of any patented article, right?

Mark P. Walters:

--Correct.

John G. Roberts, Jr.:

So the patent system is based, I think, on the recognition that contractual protection is inadequate to encourage invention.

Mark P. Walters:

Well, part of the patent policy as well is to protect the purchaser, and that's been part of this Court's law for more than 150 years.

Under Respondent's theory, any farmer who grows a soy bean seed is infringing the patent but for the grace of Monsanto.

And that's -- a lot of farmers in this country, when we have over 90 percent of the acreage that is Roundup Ready.

So under Monsanto's theory, there is really no limit by the exhaustion doctrine?

Antonin Scalia:

I didn't understand that last sentence.

Any farmer who plants and grows soybeans is violating the patent?

Mark P. Walters:

Is infringing under license by Monsanto.

Let's take the first--

Antonin Scalia:

I thought that their claim is he only violates the patent if he tries to grow additional seeds from his first crop.

Right?

Isn't that the only claim here?

Mark P. Walters:

--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 of that seed, control how that seed is used.

Antonin Scalia:

No, not that seed.

It's different seed.