Monsanto Company and Monsanto Technology LLC v. Vernon Hugh Bowman

When dealing with self-replicating technology, the doctrine of patent exhaustion does not bar an infringement action.

For full opinion:
2011 U.S.App.LEXIS 19303
2011 WL 4375669

Opinion (Linn): Monsanto Company and Monsanto Technology LLC (collectively "Monsanto") sued farmer Vernon Hugh Bowman ("Bowman") for infringement of patents relating to "Roundup Ready" soybeans which were resistant to glyphosate-based herbicides. The United States District Court for the Southern District of Indiana granted summary judgment in favor of Monsanto. To circumvent the "Monsanto Technology Agreement," Bowman bought commodity seed from the local grain elevator, planted second-crop, applied glyphosate-based herbicide and harvested the seed from glyphosate-resistant plants. "The fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder." Further, "the right to use does not include the right to construct an essentially new article on the template of the original;" the patent owner retains the right to make the article. Thus, the Court of Appeals for the Federal Circuit AFFIRMED, "patent exhaustion does not apply to Bowman's accused second-crop plantings." Farmers may use commodity seeds as feed, but cannot replicate the "patented technology by planting it in the ground." Under 35 U.S.C. §287(a), Bowman received actual notice of infringement in a letter from Monsanto on June 11, 1999, allowing Monsanto to recover damages.