Monsanto v. Bowman was decided on September 21, 2011 on appeal from the Southern District of Indiana. The case involved many issues but this post will only focus on actual notice under § 287(a). “Since 1996, Monsanto has marketed and sold .. soybean seeds under its own brands, and licenses its technology to seed producers who insert the [Monsanto bean] genetic trait into their own seed varieties.” On June 11, 1999, plaintiff Monsanto sent defendant Bowman a letter notifying Bowman of its patents. Monsanto sued Bowman in October, 2007. The district court granted summary judgment of infringement and entered judgment for Monsanto. Bowman appealed.
The Federal Circuit affirmed the judgment, holding that Bowman received actual notice such that Monsanto could recovery pre-complaint damages.
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“Bowman argue[d] that Monsanto cannot recover pre-Complaint damages because it did not provide actual notice and did not mark or require growers to mark second-generation seeds in compliance with 35 U.S.C. § 287(a).” The Federal Circuit rejected this argument. Monsanto’s 1999 letter to Bowman constituted actual notice under § 287(a). “The letter (1) identified the allegedly infringing product ([Monsanto] soybeans), (2) enclosed a Technology Agreement identifying the patents covering the [Monsanto] soybeans, (3) explained that Bowman would infringe the identified patents by planting any unlicensed [Monsanto] seeds, and (4) informed Bowman that he could not pay a fee to save [Monsanto] seeds, but may license seeds only through the purchase of new seeds subject to the Technology Agreement.” This letter was “an affirmative communication to the alleged infringer of a specific charge of infringement by a specific accused product or device,” and it was “sufficiently specific to support an objective understanding that the recipient may be an infringer.” Because “Bowman planted [Monsanto] seeds with actual notice that Monsanto considered this activity to infringe its patents,” Monsanto could recover pre-complaint damages. The Federal Circuit did not reach the issue of constructive notice through marking.