Patents To Gene Sequences May Cover Plants And Seeds Containing The Patented Sequences

A Federal Circuit panel, in Monsanto Company v. Loren David (No. 07-1104 February 5, 2008), affirms a district court's finding of patent infringement. In so doing, the Court holds that a patent on a gene sequence entitles the holder of the patent to enforce its grant of exclusivity against growers of plant varieties that contain the patented gene sequence.

Monsanto’s patent covers a gene sequence that confers resistance to glyphosate herbicides. Monsanto distributes seeds containing the patented gene sequence by authorizing various companies to produce the seeds and sell them to farmers. David purchased the seed and signed a “Technology Agreement” which prohibited David from planting seeds produced from the purchased seed. David subsequently violated the Technology Agreement by planting seed produced by the seed. Monsanto sued for patent infringement.   At trial, the district court found, inter alia, that David infringed Monsanto’s patent. 

The Federal Circuit panel agrees with Monsanto’s position that patents to genetic material may be read on plants and seeds containing the patented genetic material and that those who save such seed are liable for infringement. In affirming the district courts decision, the Federal Circuit holds that Monsanto’s patent “covering the gene sequence is infringed by planting a seed containing the gene sequence. The gene itself is being used in the planting, an infringing act.”