The U.S. Supreme Court has determined that the “exhaustion doctrine” does not apply in the context of a patented genetically modified (GM) seed, and thus a farmer who reproduced patented seeds through planting and harvesting without the patent holder’s permission impermissibly infringed the patent. Bowman v. Monsanto, No. 11-796 (U.S., decided May 13, 2013). Details about the case, including oral argument before the Court appear in issues 22 and 51 of this Bulletin.

Writing for the Court, Justice Elena Kagan stated, “Under the doctrine of patent exhaustion, 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.” According to the Court, this is, in effect, what the farmer did by buying from a grain elevator “commodity soybeans” intended for human or animal consumption, planting them in his fields and then saving seed from those crops to use repeatedly, “until he had harvested eight crops that way.”

While the Court recognized the farmer’s right to purchase the commodity soybeans, resell them, consume them, or feed them to his animals, it held that the exhaustion doctrine “does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). . . . Because Bowman thus reproduced Monsanto’s patented invention, the exhaustion doctrine does not protect him. Were the matter otherwise, Monsanto’s patent would provide scant benefit.”