Farmer Vernon Bowman.

The US Supreme Court heard on February 19 oral arguments in Bowman v. Monsanto Co., the outcome of which will have implications for selfreplicating products and the broader biotech industry. The lawsuit pits US farmer Vernon Bowman against St. Louis–based Monsanto over the farmer's apparent attempt to circumvent the patent on the agbiotech giant's herbicide-resistant Roundup Ready seeds. The Indiana farmer bought Roundup Ready soya and harvested a first crop; he later purchased seed from a grain elevator, most often purchased for animal feed, under the assumption that the mix of seeds might contain some that were genetically modified. He argued that using these next-generation seeds for a second crop was legal in light of the doctrine of patent exhaustion, which states that patented inventions can be sold only once, and that Monsanto's patent on the seeds he used had run out by the time he planted them. Monsanto took Bowman to court and Bowman was ordered to pay $84,000. Bowman appealed, but the Court of Appeals for the Federal Circuit upheld the district court's decision that Bowman had infringed Monsanto's patents. Intellectual property professionals were surprised when the Supreme Court agreed to hear the case in the face of Obama administration requests that it let lower-court rulings stand. More is at stake than transgenic plants and seeds, explains William Simmons at Sughrue Mion law firm in Washington, DC. “Some of the patent claims are directed to DNAs, genetic constructs and vectors—materials that almost every university or biotech company commonly uses, develops and sometimes patents.” An amicus brief filed by a group of major universities and technology transfer offices urges the Court to affirm the Federal Circuit decision. “A poor decision in the case could adversely impact the industry at large,” says Simmons. “For example, if the Court decides that a first sale of a single copy of a patented RNA construct exhausts the patent owner's rights to that construct, the single copy could be easily used to create an infinite number of copies of the RNA without any recourse by the patent owner. In other words, the Court would make it necessary for the patent owner to recover all of the costs of the research and development in the biotech immediately, in the first sale of it, which could make it unaffordable for many.” The Court's decision is expected in a few months.