ABA Journal


Patent Law

SCOTUS rejects farmer’s ‘blame the bean’ defense and patent exhaustion claim

May 13, 2013, 03:04 pm CDT


Monsanto won't be happy until it has a patent on every seed known to man.
The Supreme Court is unanimously on the side of big business.

By Joe on 2013 05 13, 3:34 pm CDT

If it is likely that commodity seed contains the patented quality of the Monsanto seed, why is the grain elevator allowed to sell it in the first place? Why wouldn't they be sued as well?

By Niki on 2013 05 13, 4:20 pm CDT

The farmer was trying to make an end run around the Monsanto patent. The bigger issue is abuse of patent law by suing farmers who never bought any of GM seed, as covered in the documentary, "Food Inc."

By TMJ on 2013 05 13, 5:43 pm CDT


I agree. When seeds are scattered by natural processes, there should be no infrinement. In fact, the farmer sue on a waste theory.

By ipthereforeiam on 2013 05 14, 1:38 am CDT

This guy originally bought seed from Monsanto and signed a licensing agreement. One of the terms said he would not "save" seeds to replant. He claimed that by buying seed from an elevator he was not saving them himself. SCOTUS didn't buy it. A much more interesting case would be if someone who had never signed a contract with Monsanto did the same thing.

By Fred on 2013 05 14, 12:48 pm CDT

The farmers would never have a problem planting and growing seed from the feed elevators ... UNLESS they treat the field with Round-Up(r) to select round-up resistant plants. ALL of the farmers identified for infringement use the seeds patented by Monsanto because they SELECT the seeds by treating their fields with Round-Up(r). Prior to Monsanto's invention, a seed with the Round-Up(r) resistance engineered by man into the genome, there was not way to remove weeds without damaging the crop. These farmers not only infringe by selecting the patented Round-Up(r) resistant plants, they also infringe by practicing the patented method to treating a field with Round-Up(r) and selecting crop plants resistant to Round-Up. Farmers want to use the Monsanto invention without paying Monsanto.

By mike on 2013 05 14, 2:52 pm CDT

@ 2 – 13 May 2013 Monday 11:20 AM CDT
If it is likely that commodity seed contains the patented quality of the Monsanto seed, why is the grain elevator allowed to sell it in the first place? Why wouldn’t they be sued as well?

IMLO . the elevator would have been actionable had it acted as the farmer acted ; growing the seed , dusting with RoundUp , replanting the surviving seed , <b>THEN</b> selling the resistant seed to the farmer so that he could replicate what the elevator had accomplished .

By Docile Jim Brady – Columbus OH 43209 on 2013 05 14, 3:11 pm CDT

@Mike - It sounds like you know this industry. I've always wondered why doesn't Monsanto just include the cost of all the patents into the cost of Round-Up itself? Since farmers can make seeds, but can't make Round-Up, this seems like an efficient way to make sure that they're paid without all the seed litigation. Besides the PR problems the current method seems to add a lot of unnecessary ill-will and cost when they can get to the same result by just charging more for RoundUp and less, or next to nothing, for seeds.

By Michael on 2013 05 14, 3:19 pm CDT

In case you actually want to read the patent:
USRE38825 (E1) - Glyphosate tolerant plants
It is a Reissue of:
US5463175 (A) - Glyphosate tolerant plants

By mike on 2013 05 14, 3:27 pm CDT

The glyphosphate patent has long since expired, there are generic "Round-Up" products available although the latest, greatest chemical variant is probably owned by one of the major chemical companies. The method of growing and being able to kill off everything that isn't your crop that's where the value lies. Traditional crops are plagued by weeds. You don't get 100% crop even with Round-Up(r), but treating the field with Round-Up(r) every several months reduces the number of weeds to nearly zero. Pioneer is still trying to sell an alternatively patented/resistant product but to-date Round-Up is dominant. Here's the Pioneer side of the story: <>

By mike on 2013 05 14, 3:39 pm CDT

Got it - it's a method patent. I feel for the farmers -- mainly because they probably don't get most of this until they're in serious trouble -- but I see where the company is coming from. It sounds like this was a tough plant to invent; I can see why they'd want to get paid for it. It looks like it was filed in '05 so it will expire sometime in 2015. That makes me think that from a business vantage point Monsanto might want to pivot, soon, to building goodwill in the brand as much as their tech, unless they have something better coming to replace it.

By Michael on 2013 05 14, 4:15 pm CDT

Isn't it 20 years (see Kagan opinion quote), so 2025? Goodwill campaign starting 2020?

By Walt Fricke on 2013 05 14, 8:55 pm CDT

The earlier one is 1995. I'm assuming they can't reset the clock by reissuing the same patent, or everybody would ask for a patent reissue. Is there anybody here who knows how this works?

By Michael on 2013 05 14, 9:16 pm CDT

In the copyright area, Congress can extend (and did, for Disney's benefit). And to comply with international standards, if not treaties, more recently took some public domain music back under protection, to the dismay of various orchestras and other players of classical music.

Don't know about patents.

By Walt Fricke on 2013 05 14, 10:15 pm CDT

So, he traded his cow for some magic beans and HE'S getting sued?

By B. McLeod on 2013 05 16, 12:28 pm CDT

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