In Bowman v. Monsanto, the Supreme Court requested the opinion of the Solicitor General on whether to grant review on two questions: “Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?” In a well-reasoned amicus brief, the Solicitor General suggested that the Supreme Court should decline to hear the case.

BACKGROUND -

The Bowman case involves a seed-purchasing customer’s use of a transgenic “Roundup Ready®” seed variety first invented and developed by Monsanto. Vernan H. Bowman, an Indiana farmer, routinely purchased Roundup Ready® seeds for his first yearly soybean planting. However, starting in 1999, he also began purchasing commodity soybean seeds from a grain elevator for a second yearly planting. Because more than 90% of soybeans grown in Indiana contain Monsanto’s patented technology, the soybean plants grown from Mr. Bowman’s second yearly planting showed the same herbicide resistance as Roundup Ready® soybean seeds. Monsanto investigated and then sued for patent infringement. The district court granted summary judgment of infringement for Monsanto, awarding $84,456.20 in damages.