U.S. Supreme Court Holds that Taking Advantage of Self-Replicating Properties of a Patented Invention May Be Infringement

In a May 13, 2013 decision, the U.S. Supreme Court held that a farmer’s unauthorized re-planting of patented seeds to make copies of those seeds for future planting was an act of patent infringement. In this case, Monsanto sued a farmer (Bowman) for gathering and re-planting seeds that were produced as a result of licensed use of Monsanto’s patented seeds. The license did not extend to such use of the patented seeds.

The Supreme Court held that such manufacture of copies of the patented product (by replanting and harvesting) was not protected by the doctrine of patent exhaustion. The Court held that non-replicating uses of the patented product (e.g., consumption by humans or animals) were the normal and intended uses of the product, and that use of the patented product to make further copies of that product is therefore not a protected activity. The Court distinguished, and expressly did not rule as to, other technologies in which the normal use involves replication (e.g., where the product’s self-replication is outside of the control of the purchaser or where replication is necessary and incidental to the intended use of the product).