As a follow-up to my recent column, the U.S. Supreme Court heard oral arguments from attorneys for farmer Vernon Bowman, Monsanto and the Department of Justice on Feb. 19. Read the transcript (pdf).
While a final ruling isn't expected until June, numerous statements by the justices seem to side with the views of Monsanto and the DOJ. Some example highlights: Justice Breyer - "There's a law that says you cannot make copies of a patented invention. And that law you have violated when you use it to make generation 3." Justice Sotomayor - "The Exhaustion Doctrine permits you to use the good that you buy. It never permits you to make another item from that item you bought. So that's what I think Justice Breyer is saying, which is you can use the seed, you can plant it, but what you can't do is use its progeny unless you are licensed to, because the progeny is a new item." Ms. Arbus Sherry (DOJ) - "Despite what the petitioner (Bowman) says, farmers do not generally go to grain elevators, buy comingled grain and plant it in the ground as seed. The business of grain elevators is not to sell comingled grain as seed. If that was their business they would have to comply with seed labeling laws. It is quite likely that a large amount of this grain is not only protected by patent but is actually protected by a Plant Variety Protection Certificate." Mr. Walters (Bowman's attorney) - "Mr. Bowman bought grain without any restrictions on how he could use it. That broke no laws, and it doesn't violate PVPA certificate. Monsanto did not assert them in this case, and could not assert them in this case because there's no single variety that Mr. Bowman planted. So that's not a good argument." Justice Scalia - "He's not prevented from using it. He can use it for what it's meant for, raising a crop. He just cannot use the product, that new crop, for replanting. That's all."