* Case involves second-generation commodity soy seeds
* Farmer bought mix of unmarked seeds from grain elevator
* Monsanto says affirms intellectual property rights
(adds comment from farmer's lawyer, final paragraph)
By Carey Gillam
Sept 21 Monsanto Co. (MON.N), the world's
largest seed company, has prevailed in another lawsuit against
a U.S. farmer, earning a ruling from a federal appeals court
that protects Monsanto's interests even when its patented seeds
are sold in a mix of undifferentiated "commodity" seeds.
The U.S. Court of Appeals for the Federal Circuit in
Washington issued its ruling Wednesday, affirming the lower
court decision that favored Monsanto.
The St. Louis, Mo.-based company sued Indiana soybean
farmer Vernon Bowman in 2007 accusing Bowman of patent
infringement for planting and saving seeds that contained
Monsanto's genetically altered Roundup Ready technology even
though Bowman said he bought those seeds as part of a mix of
Commodity seeds come from farms that use Roundup Ready
technology as well as those that do not without
differentiation. No licensing agreements are required with the
sale of such seeds.
Monsanto restricts grower use of its licensed Roundup Ready
seed to a single commercial crop season. Roundup Ready seeds
tolerate spray treatments of Monsanto's Roundup herbicide.
The court found that while the technology agreements
Monsanto requires growers to adhere to forbids farmers from
selling the progeny of Roundup Ready seeds, those agreements do
not extend to second-generation seed.
In fact, Monsanto authorizes the growers to sell their
second-generation seed to grain elevators as a commodity and
does not require restrictions on grain elevators' subsequent
sales of that seed, the court said.
But that still does not give growers a green light to
replicate Monsanto's patented technology by planting it in the
ground to create "newly infringing genetic material, seeds and
plants," the court found.
"The attempt to limit the applicability of patent rights
was again squarely rejected by the court," Monsanto said in a
In Bowman's case, he planted Roundup Ready seeds as his
first-crop in each growing season from 1999-2007 and did not
save seed in compliance with licensing agreements. But he also
purchased commodity seed from a local grain elevator for a
late-season planting, or what is known as a "second-crop."
The farmer applied glyphosate to his second soybean crops
and was able to identify herbicide-resistant plants, from which
he then saved seed for subsequent years of second-crop
planting, according to the court documents.
Bowman argued that Monsanto's patent rights were exhausted
with respect to Roundup Ready soybean seeds that are present in
grain elevators as undifferentiated commodity seed.
But the court still found that infringement of Monsanto's
patent occurred and affirmed the award of damages to Monsanto,
which a lower court set $84,456.
Mark Walters, a lawyer for Bowman, said he was disappointed
in the court decision, which he said conflicts with "over a
century of Supreme Court law on patent exhaustion." Bowman may
make a further appeal, he said.
(Reporting by Carey Gillam; Editing by Bob Burgdorfer)