By 3L student Ryan Beckstrom, Fellow with the Center for Law and Biomedical Sciences
The United States Supreme Court is currently considering the case of agribusiness giant Monsanto against a farmer who planted his crops using second-generation versions of Monsanto’s patented “Roundup Ready” soy seeds. Generally, Monsanto farmers are forbidden by contract from saving their “Roundup Ready” seeds for replanting, but in this case Bowman purchased second-generation seeds from a local grain elevator. The catch is that most of the seeds in the region were “Roundup Ready,” so the bulk of what Bowman purchased from the grain elevator was second-generation Monsanto crop. The Court is faced, then, with the question of whether Monsanto can prohibit Bowman from planting the repurchased seed. The repercussions of the Court’s ruling, no matter the outcome, will extend beyond agriculture and into other sectors of the health and biotechnology industries because of the often-vital importance of self-replication to the continuation of life.
Photo: Center for Law and Biomedical Sciences, 2012-13 Fellows (left to right) Laura Anne Taylor, Ryan Beckstrom and Jeff Enquist.
The key issue for the biotech world is whether there should be an exception to the doctrine of patent exhaustion for self-replicating technologies. The principle of patent exhaustion, which “exhausts” a patent after an authorized sale, limits how long patent holders can control or prohibit the use of their patented products. This doctrine is complicated in the context of living organisms that self-replicate automatically or in normal use. Thus, the biotech implications of the case will likely hinge on the scope of patent exhaustion for goods that naturally self-replicate. How far downstream are patent holders able to exercise control over their patents? Will the Court draw a line between the rights over second-generation and subsequent-generation offspring?
These questions are important because the Court’s ruling may apply to a number of cutting-edge, self-replicating technologies, such as live vaccines, tissue cultures, cell lines and DNA used for research or medical treatment, and some types of nanotechnology. Monsanto argues that a ruling limiting their control over second-generation self-replicating seeds would make investors unlikely to invest “if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.”  For this reason, many universities and laboratory instrument makers, concerned that a decision favoring Bowman could decrease incentives for investments in research and development, have sided with Monsanto. On the other hand, Bowman’s attorneys expressed concern about choosing patent rights over personal property rights, an argument that becomes especially compelling in the context of cell lines and DNA. 
The Court may be faced, then, with a decision between encouraging innovation and protecting personal property rights over valuable self-replicating technologies. Of course, this will depend on the approach that the Court chooses to take in solving Bowman and Monsanto’s dispute. Either way, the public policy implications of this case will likely be felt far beyond Bowman’s soy fields.
 Oral Argument, Bowman v. Monsanto, No. 11-796 (Feb. 19, 2013)