[JURIST] The US Supreme Court [official website] heard arguments Tuesday in Bowman v. Monsanto [transcript, PDF; JURIST report] on the scope of a Monsanto [corporate website; JURIST news archive] patent [text] on genetically-modified seeds that utilizes Roundup Ready [product website] technology. The seeds are altered to “self replicate,” which means that the more one plants the seeds, additional seeds will be produced. Monsanto sued a number of farmers who were using the self-replicating technology in harvests after the season they purchased the seeds, arguing the farmers should have to purchase new seeds every year. Attorneys for the farmers argued that the farmers were using the patent as intended.

Patent exhaustion provides that once a patented article is sold, it passes outside the protection of the Patent Act. It is available to be used by the purchaser to practice the invention. Now, what’s the invention here? The invention is a bit of DNA that, when asserted into a soy bean seed, makes that seed and all the plants that grow from that seed resistant to the active ingredient in Roundup. Now, the only way to practice that invention is to plant the seed and to grow more seeds.

Monsanto argued that its patent specifically alters the soybeans in ways that using other soybeans, which the farmer can buy at a cheaper price, is protected by the patent. For example: “[T]he glyphosate resistance doesn’t change the yield of a particular plant, it changes the way you have to control weeds. And he would not be able to use Monsanto’s technology that would allow aerial application of an herbicide. He would have to—if he wanted to buy plain old, you know, conventional soybeans, he has to control for weeds in the conventional way.”

The court also heard arguments in Millbrook v. US [transcript, PDF; JURIST report] on if 28 USC § 1346 [text] waives the immunity of prison guards who commit intentional torts, within the scope of their authority but not while committing a search, seizure or arrest. Millbrook’s attorney argued that the alleged sexual assault on Millbrook occurred within the scope of the prison guards’ employment, and suggested that the legislature did not mean to exclude extreme acts of misconduct.

And even in Pennsylvania, you see cases where people do outrageous things, like a private detective shooting a picketing protester, where the Pennsylvania courts have held that that’s within the scope of employment. It’s a complicated issue. It’s an issue of State law and it will be different in every State, which is why I would suggest it’s more appropriate for this to be handled on remand rather than have a ruling by this Court on a narrow issue of Pennsylvania State law. But I think it is hardly implausible that Pennsylvania courts would find this within the scope of employment.

The attorney for the United States argued that a plain reading of the law suggests the waiver is for anything within the scope of the employment, which is defined by State law, regardless of the improper acts committed through that scope: “[T]hose torts [listed] serve as a rough approximation of what Congress anticipated would be the areas where it thought the United States should be liable, when we are talking about Federal law enforcement officers.”