The US Supreme Court has ruled unanimously that farmers cannot freely use patented genetically modified soybeans to harvest progeny seeds for subsequent replanting. This outcome is contrary to the doctrine of exhaustion of patent rights under which, once a patented product is sold with the authority of the patentee, it's resale is generally not subject to restriction. By contrast, under the US Plant Variety Protection Act, the progeny seed of a protected plant can be legally saved by the farmer for replanting.

The Court held that "the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. Such a sale, however, does not allow the purchaser to make new copies of the patented invention." The Court also held that the term "make," in the grant of exclusivity to the patentee and the prohibition of patent infringement includes "to plant and raise (a crop)." To hold otherwise, the Court said, would deprive the patentee of its lawful monopoly.

In a creative approach, the alleged infringer had tried to argue that soybeans naturally self-replicate or sprout unless they are stored in a controlled manner and therefore any infringement was not his fault!  The Court observed that it was the farmer who:

  • purchased the seeds,
  • planted and managed the crop,
  • exploited the patented resistance of the seeds to the RoundUp herbicide, and
  • marketed or saved the seed to replant.

The Court thus dismissed the "blame-the-bean" defence placing responsibility for the infringement squarely with the farmer.

US commentators suggest that the decision is a major victory for the biotechnology industry, as it shows that the Supreme Court recognizes patent protection as extending to the progeny of self-reproducing biological inventions.

Bowman v. Monsanto Co., U.S., No 11-796, 5/13/2013.