ELR Citation: 41 ELR 20297
No(s). 2010-1068 (Fed. Cir. Sep 21, 2011)

The Federal Circuit affirmed a lower court decision that a farmer committed patent infringement when he planted second-generation "commodity seeds" that contained genetically altered seeds covered by a patent. The seed manufacturer restricts the use of its patented seeds to a single crop season. Second-generation seed, however, may be sold to grain elevators as a commodity, often mixed in with other second-generation seeds. While farmers may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot replicate the seed manufacturer's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants. Even if the manufacturer's patent rights in the commodity seeds were exhausted, once a farmer plants the commodity seeds containing the patented technology and the next generation of seed develops, the farmer has created a newly infringing article. Accordingly, patent exhaustion does not bar the manufacturer's infringement action.