Monsanto's Patent Case Heads to Supreme Court

     WASHINGTON (CN) - The Supreme Court has taken up a case where an Indiana farmer was ordered to pay more than $84,400 for infringing on Monsanto's patented genetically engineered seeds.
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     Monsanto has patented its genetically modified Roundup Ready soybeans that exhibit resistance to its glyphosate-based herbicides Roundup.
     Its technology can be incorporated into a variety of crops, allowing farmers to fight weeds with glyphosate-based herbicide while not damaging their crops.
     In the '605 patent, issued in 1994, Monsanto uses viral nucleic acid to transform a plant cell's new genetic material.
     To accomplish this transformation, Monsanto isolates a section of the genome for the acid, which is found in a virus that infects plant cells known as cauliflower mosaic. Then this region is combined with a heterologous protein-encoding DNA sequence, forming a chimeric gene to be expressed in the plant cell.
     The '436 patent, issued in 2006, uses the aforementioned patent to transform plant cells with novel protein-encoding gene sequences that encode for EPSPS, a glyphosate-tolerant enzyme. These genetically modified plants express EPSPS and exhibit glyphosate resistance.
     Seed producers who insert the Roundup Ready genetic trait into their plants license the technology from Monsanto.
     Farmers buy these seeds from the Monsanto-licensed producers and sign a limited-use license. Since successive crops would carry the genetic trait, Monsanto's agreement requires the farmer to use the seed containing Monsanto gene technologies for only a single season of planting a commercial crop.
     It also forbids the farmer from reselling the seeds or from saving the seed or any crop produced from it for replanting.
     Farmers also cannot use the seed or provide it to anyone for crop breeding, research, generation of herbicide registration data or seed production.
     Monsanto authorizes growers to sell second-generation seed to local grain elevators as a commodity, however, without restricting grain elevators' subsequent sales of that seed.
     The company says that nearly 94 percent of Indiana's acres of soybeans planted in 2007 were planted using herbicide-resistant varieties.
     Commodity seeds are a mixture of undifferentiated seeds harvested from various sources, including from farms that grow Roundup Ready soybeans and those that do not.
     Monsanto insists that its contract does not prohibit unrestricted seed sales to grain elevators as a commodity.
     After its sued Knox County farmer Vernon Hugh Bowman for patent infringement, the court found that the only permissible reading of the agreement is that it authorizes growers to sell seed to grain elevators as a commodity.
     Bowman had bought the Roundup Ready seeds from licensed producer Pioneer Hi-Bred every year from 1999 through 2007, signing the technology agreement Pioneer proffered.
     He never saved seed from his first crop during any of those years.
     That first year, Bowman also purchased less expensive commodity seed from a local grain elevator, Huey Soil Service, for a risky late-season planting.
     Bowman had sprayed herbicide on his fields that year and discovered that many of his plants were, indeed, resistant.
     In each subsequent year, from 2000 through 2007, Bowman treated his second crop with glyphosate-based herbicide. Each time, Bowman saved the seed harvested from his second crop for replanting additional second crops in later years.
     Monsanto contacted Bowman in winter 2006 to investigate his planting activities, about which he had been open and honest.
     After investigating eight of Bowman's fields, totaling 299.1 acres, in 2007, it confirmed that Bowman's second-crop soybean seeds grown from the commodity seeds contained the patented Roundup Ready technology.
     A federal judge granted Monsanto summary judgment of infringement in 2009 and awarded the company $84,456.20 in damages. The Federal Circuit affirmed last year, leading Bowman to petition the high court for certiorari.
     The appeal concerns whether patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale.