| November 19,
2004, CropChoice: Homan McFarling was sued
by Monsanto for saving seeds and replanting them. The
seeds had been genetically modified by Monsanto to resist
Roundup (R) herbicide and were patented. (U.S. Patents
5,633,435 and 5,352,605).
At the Federal Circuit, McFarling argued that the Sales
Agreement from Monsanto involved an unlawful misuse
of Monsanto’s patents by restricting use of “god-made”
second-generation seeds. The Appellate Court disagreed.
Because the first-generation seeds (sold by Monsanto)
were nearly identical copies to the second-generation
seeds, the Court found that the patent scope includes
both generations. Thus, the Court rejected McFarling's
appeal and held that the Sales Agreement did not impermissibly
extend Monsanto's rights.
Now, McFarling has taken the suit to the Supreme Court.
In case No. 04-31, McFarling is asking the Court to
to overturn the Federal Circuit's ruling and presents
two questions:
- May a patent holder lawfully prohibit farmers from
saving and replanting seed as a condition of the purchase
of patented technology?
- Does obtaining patents on products which are the
subject of licensing agreements afford an absolute
defense to any claim that the licensing agreements
violate the Sherman Act?
The Supreme Court has asked the Solicitor General to
brief in this case expressing the views of the United
States. It is expected that the Bush Administration,
through the Solicitor General, will support Monsanto's
position.
http://www.patentlyobviousblog.com/2004/11/supreme_court_r.html
http://www.supremecourtus.gov/docket/04-31.htm
McFarling v. Monsanto (Supreme Court Docket No. 04-31)
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