On May 13th, a unanimous Court found that the doctrine of patent exhaustion “does not allow the purchaser to make new copies of the patented invention.” [A copy of decision is at the end of this post.] In this case, the patented invention was a soybean seed obtained from a plant that had been genetically altered so that it is resistant (“survives exposure”) to the herbicide glyphosate. I know that this is “yesterday’s news” by now, but I need a break from plumbing the depths of CLS v. Alice, so I thought I would offer a few observations. (I also did posts when the Fed. Cir. ruling came down, when the Supreme Court granted cert. and when oral argument was heard.)
At least this was a “patent friendly” decision, and the Court even spent some time discussing its relationship with J.E.M. v. Pioneer Hi-Bred, 534 U.S. 124 (2001) in which a divided Supreme Court held that utility patents were available for plants, despite the protections offered by Plant Variety Protection Act Certificates (PVPA certificates). Slip op. at 7. In that decision, the Court held that “only a patent holder (not a certificate holder) could prohibit ‘[a] farmer who legally purchases and plants’ a protected seed from saving harvested seed ‘for replanting’…(noting that the Patent Act, unlike the PVPA contains ‘no exemptio[n]’ for ‘saving seed’).”
