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Monsanto Seed-Saving Litigation Round Up (®?)

Last Friday, the Northern District of Mississippi rejected Monsanto’s claims for attorneys’ fees and treble damages in Monsanto Co. v. Scruggs, No. 3:00-cv-161, 2012 WL 3938852 (N.D. Miss. Sept. 7, 2012), one of the more famous patent litigations involving “seed-saving”–the saving, use, and in this case, sale of seeds from a patented plant.

To briefly recap: Monsanto owns patents on seeds its markets as Roundup Ready and Bollgard. The seeds are genetically modified to be resistant to glyphosphate, an effective and enormously popular pesticide. Monsanto, however, doesn’t allow farmers to “save seed” from their crops for replanting. Farmers must buy another bag of seed from Monsanto for next season.

Son of a sharecropper and Mississippi farmer, Mitchell Scruggs, disregarded Monsanto’s dictate, and sold bags of “saved seed” from his farm. Monsanto brought suit and won–$8.9 million. Monsanto then went after Scruggs again for additional damages for “willfully” infringing its patents. Given Scruggs behavior, as proven at trial, the law seemed well on Monsanto’s side. The Read factors for demonstrating willful infringement include deliberate behavior, knowledge, closeness of the case, and remedial action on the part of the defendant–all of which seemed to counsel for Monsanto.

Nonetheless, in a decision last Friday, the District Court denied Monsanto’s motion. What’s fascinating about the case is the court’s belief that “there are unique factors present in this and similar ‘seed saving’ cases which are not fully reflected in the Read factors.” This seems in line with an emerging body of legal scholarship that questions the ethics Monsanto’s restrictions on seed saving. See, e.g., Elizabeth I. Winston, A Patent Misperception, 16 Lewis & Clark L. Rev. 289 (2012); Elizabeth A. Rowe, Patents, Genetically Modified Foods, and IP Overreaching, 64 SMU L. Rev. 859 (2011); Haley Stein, Note, Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World, 3 Nw. J. Tech. & Intell. Prop. 160 (2005).

The legal ground of which the court decision relies is shaky, if it exists at all. But the decision and the surrounding scholarship raise numerous, interesting issues, including the ethics of prohibiting seed saving, patent doctrines concerning “downstream user rights,” and philosophical questions about the creation of machine-making machines (which is, essentially, what a seed is). While the patent system may not be best equipped to address these concerns, the facts of these cases provide (ahem) fertile ground for scholarship.

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