The U.S. Constitution: Article 1, Section 8, Clause 8

We had a brief talk in class about this section in the U.S. Constitution because one student expressed an interest in becoming a patent lawyer (I think that was the goal). 

The U.S. Constitution contains a clause concerning intellectual property rights. 

Here it is: 

Clause 8 Intellectual Property

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Here are a few readings related to that right: 

- ArtI.S8.C8.1 Overview of Congress's Power Over Intellectual Property

- ArtI.S8.C8.2 Historical Background

- ArtI.S8.C8.2.1 English Origins of Intellectual Property Law

- ArtI.S8.C8.2.2 Framing and Ratification of Intellectual Property Clause

- ArtI.S8.C8.3 Copyrights

- ArtI.S8.C8.3.1 Authorship, Writings, and Originality

- ArtI.S8.C8.3.2 Limited Times for Copyrights and the Progress of Science

- ArtI.S8.C8.3.3 Copyright and the First AmendmentArtI.S8.C8.4 Patents

- ArtI.S8.C8.4.1 Inventorship and Utility

- ArtI.S8.C8.4.2 Patent-Eligible Subject Matter

- ArtI.S8.C8.4.3 Constitutional Constraints on Congress's Power Over Granted Patents

- ArtI.S8.C8.5 Federal Power Over Trademarks

- ArtI.S8.C8.6 State Regulation of Intellectual Property

Bowman v. Monsanto Co.

The Supreme Court ruled 9-0 that a farmer who bought "Roundup Ready" seeds from Monsanto could not use newly grown seeds for replanting. They had to purchase new seeds every year, the patent was not "exhausted" when the seeds were originally sold. The case is Bowman v. Monsanto Co., and is yet another patent case decided by the court.

From ScotusBlog's opinion recap:

As the case came to the Court, the parties agree that ordinarily it violates a patent to make or use the patented invention without the owner’s consent (often granted in the form of a license).  The parties also agree on the major doctrinal exception, the doctrine of “exhaustion,” which holds that a patent holder’s rights in a particular patented object are largely “exhausted” by an authorized sale of that object: the purchaser has a free right to use and resell the purchased copy of the invention.

Bowman argues that the right to “use” the seed that he purchased necessarily included the right to plant the seed and its progeny – that is, after all, the natural use of seed.  The Court rejected the argument out of hand.  “If the purchaser of [the sold] article could make and sell endless copies, the patent would effectively protect the invention for just a single sale.”

The Court presumably was influenced by the severe consequences for Monsanto (and others like it).  The briefs of Monsanto and its amici had emphasized the high up-front costs of developing genetically engineered products like the Roundup Ready seed.  The Court commented:

Were the matter otherwise, Monsanto’s patent would provide scant benefit.  After inventing the Roundup Ready trait, Monsanto would, to be sure, receive its reward for the first seeds it sells.  But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly.