On January 23, 2013, a group of major universities and technology transfer offices filed an amicus brief urging the United States Supreme Court to affirm the Federal Circuit in Monsanto v. Bowman. The amici argued that reversing the Federal Circuit, which ruled that Bowman infringed Monsanto’s patents for Roundup Ready® soybean seeds, would have a substantial negative impact on university research directed toward artificial, progenitive technologies and the technology transfer function that is vital to bringing such technologies to market for the public benefit.
In their brief, amici noted that "[i]n 2009, academic institutions performed over half (53%) of all basic research in the United States . . . and 14% of total U.S. research and development." In particular, amici pointed out that research into artificial, progenitive technologies affects a wide range of areas like "stem cells, mutant genes, DNA vectors and molecules, viral vectors, bacterial strains, RNA enzymes, cell lines, and organic computers." Much of their research is performed under the auspices of the Bayh-Dole Act, which allows universities to obtain patent protection for inventions developed with federal funding and then license those patents to help make the inventions accessible to the public. Amici argued that reversing the Federal Circuit would harm the value of patents covering artificial, progenitive technologies, making it very difficult for universities and their technology transfer offices to license those patents for the purpose of making them available to the public.
Amici also argued that when Bowman used harvested soybean seeds to grow further generations, he "made" new seeds that infringed Monsanto’s patents because "[e]ven authorized purchasers of a patented article cannot make 'a second creation of the patented entity.'" Drawing on Supreme Court precedent, amici argued that "[u]nder any definition, Bowman certainly 'made' infringing seeds in this case, even though he grew them rather than genetically engineering them from starting materials." Moreover, amici argued that this case did not present any unique concerns regarding "innocent infringement" that are not present in any other patent infringement case, and that in any event, Bowman was not an "innocent infringer" owing to his scheme to use illegally-purchased commodity seeds as "a cheap source of seed."
Amici signing on to the brief included the Wisconsin Alumni Research Foundation, Association of University Technology Managers, Association of Public and Land-grant Universities, Association of American Universities, The Regents of the University of California, The Board of Trustees of the University of Illinois, University of Florida, Duke University, Emory University, University of Georgia Research Foundation, Inc., Iowa State University of Science and Technology, NDSU Research Foundation, University of Iowa, University of Missouri-Columbia, South Dakota State University, NUtech Ventures, University of Nebraska-Lincoln, University of Kentucky, University of Kansas, Kansas State University, Montana State University, and University of Delaware.