“Just like when you sold the computer chip, you sold not only the chip but the ability to use that chip to practice the method,” Walters said.
Not so, Monsanto’s general counsel David F. Snively says. The company’s patent protections do not end with a sale. The engineered trait, which the company has invested millions of dollars in creating, is carried in harvested seeds and continues to provide resistance to pesticides if planted.
The fact that Bowman got the seed from a grain elevator and not Monsanto or an approved distributor changes nothing, Snively says. The company allows growers who have signed technology agreements to sell their harvest for animal feed or other products. The agreements expressly prohibit the farmers from saving seed from their harvests to produce new crops.
“The patent law in this country individually gives you the right to regulate the sale of an article, the making of an article,” Snively said. “Clearly, the patent law doesn’t authorize an evasion of those patent rights by sourcing the materials from somewhere else.”
He likened it to claiming that a private sale of a computer operating system enables the buyer to make copies for a commercial basis.
Snively said Monsanto imposes what it considers to be reasonable limits on replanting of its patented seeds to keep farmers “from going off and taking the technology as if it is their own and going into business.”
The company believes it will win in the Supreme Court, he said, adding that a loss would affect not only his industry but also research universities and technology companies.
“We’re completely confident that the court is going to sort through this and define intellectual property rights in a way so that all farmers know where everybody stands on this,” he said.