Intellectual Property Law

Federal Circuit once again affirms that saving patented seeds for replanting is infringement

By McKee, Voorhees & Sease, P.L.C.

In a decision yesterday, the Federal Circuit once again affirmed a finding of infringement against a farmer who saved seeds covered by a patent to replant the following year.  The plaintiff in this case, Monsanto, has brought similar cases in the past, and they have resulted in similar outcomes.

Here, the asserted claims covered the genetic sequence for Monsanto's Roundup Ready gene, which, when incorporated into plants, causes the plants to exhibit tolerance to the herbicide glyphosate.  The defendant farmer argued that because the claims were directed to the sequence rather than the seeds or plants incorporating the sequence, the seeds were not covered by the patent.  

This argument was flatly rejected by the Federal Circuit.  The court noted that the authority on which the defendant relied, J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., actually leads to the opposite result, as in that case the Supreme Court held that despite the availability of plant patents and PVPA certificates, utility patents were also available for plants, assuming the requirements for patentability were met.  In fact, the Court refused "to narrow the reach of § 101 where Congress has given us no indication that it intends this result."  Here, the infringing act was the use of the gene by planting the seed incorporating the gene, so the Federal Circuit affirmed the finding of infringement.  While the court vacated a portion of the damages award for recalculation, it affirmed the award of costs and attorney fees to Monsanto.

More detail of Monsanto Co. v. David after the jump.

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Full post as published by FileWrapper on February 06, 2008 (boomark / email).