In Bowman v. Monsanto, the Supreme Court recently requested the views of the Solicitor General on whether to grant certiorari. The question presented has two issues, one narrow and one broad: “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?” While the first issue could directly affect the practices of major seed producers worldwide, the second has the potential to impact the entire biotechnology industry.

BACKGROUND

Patented seed technologies are in part responsible for the vast increase in U.S. farm productivity over the past several decades. Indeed, the majority of all corn, soybean, and cotton produced in the U.S. these days was grown from seed developed as the result of either scientific breeding methods, genetic engineering, or both. The seed industry is now worth more than $25 billion worldwide. Major seed companies include Pioneer Hi-Bred (a subsidiary of DuPont), Monsanto, and Syngenta among others.