Supreme Court requests administration's view on seed patent controversy

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:

  1. May a patent holder lawfully prohibit farmers from saving and replanting seed as a condition of the purchase of patented technology?
  2. 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. McFarling v. Monsanto (Supreme Court Docket No. 04-31)

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