Arguing that extending patent law this far would be too sweeping, Bowman's attorney argued that contract law would be the appropriate way to protect self-replicating technologies. Justice Elena Kagan, however, said "that answer is purely insufficient in this kind of a case, because all that has to happen is that one seed escapes the web of these contracts, and that seed, because it can self-replicate in the way that it can, essentially makes all the contracts worthless."
Monsanto's lawyer, Seth Waxman, compared the case of Monsanto's seed to another live technology that can replicate itself -- vaccines.
"When Schering-Plough or Bristol-Myers develops a vaccine and sells some of it to CVS so I can go in and get injected, they haven't lost all of their patent rights in that vaccine," he said. "CVS can't turn around and become a competitor."
The Supreme Court also heard the U.S. government's argument in favor of protecting Monsanto's patent protections.
Arguing for the government, attorney Melissa Arbus Sherry compared self-replicating seeds to software. "If you think of software, for example, there are plenty of other products where one reasonable use is to make more," she said. "I can purchase software; one reasonable use would be to make a dozen other copies to give to my friends or sell on eBay. It's a reasonable use, but it's an infringing one."