21 May 2013

Patent exhaustion does not apply to reproductions

The US Supreme Court has held that patent exhaustion does not permit a farmer to reproduce patent­ed seeds through planting and harvesting without the patent holder’s permission. In the instant case, the farmer had bought soyabean seeds (not meant for planting) and used them for cropping eight times. As per the terms of the license, he was not allowed to raise more than one crop from the genetically modified seed bought from the company (patent-holder) or to save seeds for replanting.  

The plants grown by the farmer exhibited the trait of resistance to the herbicide glyphosate. The Supreme Court agreed with the lower court that this amounted to replicating the patent technology. It did not find force in the argument that since the seeds had been bought from the grain elevator authorised to sell them, the patent holder could no longer control use of the article. In planting, weeding out plants which were not resistant and tending them, he had ‘made’ an infringing article. The seeds could not be said to have replicated themselves, by natural process.  

The court emphasised that boundaries of patent exhaustion must be so drawn that the patentee retains an undiminished right to prohibit others from making the thing his patent protects. It however observed that the holding may not apply to every situation involving a self-replicating product. [Bowman v. Monsanto Co, US Supreme Court Order dated 13-5-3013]


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