KHIKS partner Jonathan Steinsapir was quoted by Law360.com in its compilation of attorney comments on the U.S. Supreme Court’s May 13, 2013 ruling that an Indiana farmer violated Monsanto Co.’s patent of genetically altered seeds by replanting them.
The farmer had claimed that the company’s control of the soybean seeds was exhausted.
“Unlike the Supreme Court’s other ‘exhaustion’ decision this term—Kirtsaeng v. John Wiley & Sons, involving ‘copyright exhaustion’—I do not believe the Monsanto case will have broad ramifications beyond the circumstances of the case, i.e., patents which protect plant seeds. Although the decision could logically be extended to patents involving other living organisms, which self-replicate, I do not see the case being applied beyond that. Of course, I am sure some creative copyright and patent lawyers will attempt to stretch the decision into other areas involving technology which ‘self-replicates’ (such as software, for example). However, I do not think well-informed courts will be, or should be, sympathetic to such arguments. Application of exhaustion principles to other technology needs to be judged by looking to the policies animating exhaustion generally, and not by attempts to analogize such technology to genetically modified soybean seeds.”