Last Month at the Federal Circuit
Last Month at the Federal Circuit

September 2012

Looking Ahead

On September 24, 2012, the Supreme Court will decide whether to grant certiorari in several patent cases.  In R.J. Reynolds Tobacco Co. v. Star Scientific, Inc., No. 11-182 (Mar. 28, 2012), R.J. Reynolds Tobacco Company’s petition asks whether “the Federal Circuit’s insolubly ambiguous/amenable-to-construction test for patent definiteness, which upholds patents whose construed claims fail to inform a skilled artisan of the outer limits of the claimed monopoly, faithfully implements § 112 ¶ 2 as interpreted by the decisions of [the Supreme Court].”  In Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364 (Fed. Cir. 2011), the Federal Circuit upheld Star Scientific, Inc.’s patents against an indefiniteness challenge.

The Supreme Court will also decide whether to grant certiorari in Bowman v. Monsanto Co.,
No. 11-796 (Apr. 2, 2012), regarding the issue of “patented seed exhaustion.”  Vernon Bowman, a farmer, petitioned the Supreme Court after the Federal Circuit, in Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011), declined to find patent exhaustion where Monsanto Company sold its patented seed to him, and he grew crops and harvested the seeds from the crops.   Mr. Bowman’s petition poses the following questions:  Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale, and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?