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BRIEF OF AMICI CURIAE WISCONSIN ALUMNI RESEARCH FOUNDATION ET AL. IN SUPPORT OF AFFIRMING THE FEDERAL CIRCUIT

BRIEF OF AMICI CURIAE WISCONSIN ALUMNI RESEARCH FOUNDATION ET AL. IN SUPPORT OF AFFIRMING THE FEDERAL CIRCUIT

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Published by darwinbondgraham
A court brief in Bowman v. Monsanto filed by sixteen universities in support of Monsanto.

In 1994, the United States Patent and Trademark Office granted a patent to the Monsanto Company for genetic material from a virus that can be used to incorporate new genetic material into a plant. In 2006, Monsanto patented a gene that makes plants resistant to the glyphosate-based herbicides that farmers can use on weeds. Both patents are included in the Monsanto Technology agreement which states that growers who purchase Monsanto’s products may only use the seed for a single season and may not sell the seeds to any other grower. Growers may sell the second-generation seed to a grain elevator.

Vernon Hugh Bowman, a farmer in Knox County, Indiana, began purchasing Monsanto’s Pioneer Hi-Bred seed in 1999 and followed the terms of the agreement by not saving any of his seed. Also beginning in 1999, Bowman purchased second-generation seed from a grain elevator for his second planting and saved seeds from that purchase for reuse later. In 2006, Monsanto contacted Bowman to examine his planting activities and found that his second-round crops contained the patented genetic material. Monsanto sued Bowman for patent infringement. The district court granted summary judgment for Monsanto. The United States Court of Appeals for the Federal Circuit affirmed.
A court brief in Bowman v. Monsanto filed by sixteen universities in support of Monsanto.

In 1994, the United States Patent and Trademark Office granted a patent to the Monsanto Company for genetic material from a virus that can be used to incorporate new genetic material into a plant. In 2006, Monsanto patented a gene that makes plants resistant to the glyphosate-based herbicides that farmers can use on weeds. Both patents are included in the Monsanto Technology agreement which states that growers who purchase Monsanto’s products may only use the seed for a single season and may not sell the seeds to any other grower. Growers may sell the second-generation seed to a grain elevator.

Vernon Hugh Bowman, a farmer in Knox County, Indiana, began purchasing Monsanto’s Pioneer Hi-Bred seed in 1999 and followed the terms of the agreement by not saving any of his seed. Also beginning in 1999, Bowman purchased second-generation seed from a grain elevator for his second planting and saved seeds from that purchase for reuse later. In 2006, Monsanto contacted Bowman to examine his planting activities and found that his second-round crops contained the patented genetic material. Monsanto sued Bowman for patent infringement. The district court granted summary judgment for Monsanto. The United States Court of Appeals for the Federal Circuit affirmed.

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Published by: darwinbondgraham on Feb 26, 2013
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02/26/2013

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No. 11-796
In The
Supreme Court of the United States
 _____________________ 
 
 V
ERNON
H
UGH
B
OWMAN
,
Petitioner,v.
M
ONSANTO
C
OMPANY 
,
 
ET AL 
.
 
Respondents.
 _____________________ 
 
On Writ of Certiorari to the United States Court ofAppeals For the Federal Circuit
 _____________________ 
BRIEF OF
AMICI CURIAE
WISCONSIN ALUMNIRESEARCH FOUNDATION
ET AL.
IN SUPPORT OFAFFIRMING THE FEDERAL CIRCUIT
 _____________________ S
COTT
P.
 
M
C
B
RIDE
 
Counsel of Record 
 S
TEPHEN
M.
 
W
URTH
 C
 AROLINE
 A.
 
T
EICHNER
 M
C
 A 
NDREWS
,
 
H
ELD
&
 
M
 ALLOY 
,
 
L
TD
.500
 
W
EST
M
 ADISON
S
TREET
,
 
S
UITE
3400C
HICAGO
,
 
I
LLINOIS
60661(312)
 
775-8000smcbride@mcandrews-ip.com
Counsel for Amici Curiae 
[Additional
 Amici 
Listed On Inside Cover]
 
ASSOCIATION OF UNIVERSITY TECHNOLOGYMANAGERS, ASSOCIATION OF PUBLIC ANDLAND-GRANT UNIVERSITIES, ASSOCIATION OFAMERICAN UNIVERSITIES, THE REGENTS OF THEUNIVERSITY OF CALIFORNIA, THE BOARD OFTRUSTEES OF THE UNIVERSITY OF ILLINOIS,UNIVERSITY OF FLORIDA, DUKE UNIVERSITY,EMORY UNIVERSITY, UNIVERSITY OF GEORGIARESEARCH FOUNDATION, INC., IOWA STATEUNIVERSITY OF SCIENCE AND TECHNOLOGY,NDSU RESEARCH FOUNDATION, UNIVERSITY OFIOWA, UNIVERSITY OF MISSOURI-COLUMBIA,SOUTH DAKOTA STATE UNIVERSITY, NUTECHVENTURES, UNIVERSITY OF NEBRASKA-LINCOLN,UNIVERSITY OF KENTUCKY, UNIVERSITY OFKANSAS, KANSAS STATE UNIVERSITY, MONTANASTATE UNIVERSITY, AND UNIVERSITY OFDELAWARE
 
TABLE OF CONTENTSTABLE OF AUTHORITIES ....................................
iii
 
STATEMENT OF INTEREST ................................... 1
 
SUMMARY OF ARGUMENT ................................... 2
 
BACKGROUND ........................................................ 5
 
ARGUMENT ........................................................... 10
 
I.
 
REVERSING THE FEDERAL CIRCUITWOULD DEPRIVE THE PUBLIC OF THEIMPORTANT BENEFITS OF ARTIFICIAL,PROGENITIVE TECHNOLOGIES .............. 10
  A. Reversal would greatly diminish, andadd uncertainty to, the value of patents covering artificial, progenitivetechnologies. ........................................ 10B. Reversal would devalue the extensivebenefits achieved by the Bayh-Dole Act. ....................................................... 13
II.
 
BOWMAN “MADE” NEW GE
NERATIONSOF INFRINGING SEEDS IN VIOLATIONOF 35 U.S.C. § 271(a). ................................... 14
  A. Bowman impermissibly used patentedgeneration
n+1 
seeds to makeinfringing generation
n+2 
seeds. ........ 15B. Exemptions for the infringement of plant patents do not apply to theutility patents at issue here. ............... 20

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