By Michael Belliveau of Clark + Elbing LLP
Michael Belliveau, Ph.D. is a patent attorney and partner at Clark+Elbing LLP, a Boston patent prosecution firm. His work involves patent prosecution, freedom-to-operate and patentability opinions, and investment due diligence. He can be reached at mbelliveau@clarkelbing.com.
The US Supreme Court is pondering whether the authorized sale of a patented seed extinguishes the patentee’s right to prevent others from using the purchased seed to produce additional seed. The case, Bowman v. Monsanto Co.,1 is being followed by many, especially the biotech industry, because of its potential ramifications on protection surrounding self-replicating technologies such as vaccines and stem cells. Bowman is of interest for another reason applicable to nearly all sectors of industry, as the case provides an opportunity for the Supreme Court to refine its views on the doctrine of patent exhaustion and, more specifically, to address whether a patentee can retain certain patent rights following an authorized sale of a patented product.
Background
The patents in suit2 cover Monsanto’s genetically modified “Roundup ReadyŽ” soybeans that are resistant to glyphosate-based herbicides (e.g., Monsanto&rs...
