Indiana Intellectual Property Law News
Washington, D.C. – The U.S. Court of Appeals for the Federal Circuit has affirmed a decision of Chief Judge Richard L. Young of the Southern District of Indiana in a patent infringement case. Patent lawyers for Vernon Hugh Bowman, an Indiana farmer, had appealed Chief Judge Young’s ruling in favor of Monsanto Company of St. Louis, Missouri. In 2007, patent attorneys for Monsanto 
had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Mr. Bowman infringed patent no. 5,352,605, Chimeric genes for transforming plant cells using viral promoters and RE39,247E, GLYPHOSATE-TOLERANT 5-ENOLPYRUVYLSHIKIMATE-3-PHOSPHATE SYNTHASES, which has been issued by the US Patent Office. The patents at issue cover different aspects of genetically-modified “Roundup Ready®” soybeans that are resistant to certain herbicides, including Monsanto’s Roundup® product.
According to the court’s opinion, all growers of the Roundup Ready soybeans must sign a limited use license, called a Technology Agreement. The agreement restricts the use of the seed to a single season and does not allow the grower to save any seed from the crop produced to plant the next season. However, the agreement allows growers to sell the second-generation seeds to local grain elevators as “commodity seeds.” Farmer Bowman purchased some of these commodity seeds, planted and produced a crop from them. Mr. Bowman then retained some of the seeds from the commodity seed crop and replanted them the next year. He had also planted “Roundup Ready®” soybeans in a different area of his farm and signed the Technology Agreement.
Chief Judge Richard L. Young found that Farmer Bowman had infringed the Monsanto’s patents and entered a judgment in the amount of $84,456.20 in favor of Monsanto. The Federal Circuit Court affirmed. Reuters reported on the story.
Practice Tip: Mr. Bowman argued that he did not infringement patents under the doctrine of patent exhaustion. Specifically, he argued that no patent rights were attached to the “commodity seeds” since planters could sell the seeds to grain elevators without infringing the patent rights or technology agreement. Patent exhaustion in the context of second generation seeds has already been subject of two federal circuit court opinions: Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006) and Monsanto Co. v. McFarling, 302 F.3d 1291 (Fed. Cir. 2002).
This case was assigned to Chief Judge Richard L. Young of the Southern District of Indiana, and assigned Case No. 2010-1068.CAFC Opinion