Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 4 (1995)

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182

ASGROW SEED CO. v. WINTERBOER

Opinion of the Court

State. The Winterboers have incorporated under the name "D-Double-U Corporation" and do business under the name "DeeBee's Feed and Seed." In addition to growing crops for sale as food and livestock feed, since 1987 the Winter-boers have derived a sizable portion of their income from "brown-bag" sales of their crops to other farmers to use as seed. A brown-bag sale occurs when a farmer purchases seed from a seed company, such as Asgrow, plants the seed in his own fields, harvests the crop, cleans it, and then sells the reproduced seed to other farmers (usually in nondescript brown bags) for them to plant as crop seed on their own farms. During 1990, the Winterboers planted 265 acres of A1937 and A2234, and sold the entire salable crop, 10,529 bushels, to others for use as seed—enough to plant 10,000 acres. The average sale price was $8.70 per bushel, compared with a then-current price of $16.20 to $16.80 per bushel to obtain varieties A1937 and A2234 directly from Asgrow.

Concerned that the Winterboers were making a business out of selling its protected seed, Asgrow sent a local farmer, Robert Ness, to the Winterboer farm to make a purchase. Mr. Winterboer informed Ness that he could sell him soybean seed that was "just like" Asgrow varieties A1937 and A2234. Ness purchased 20 bags of each; a plant biologist for Asgrow tested the seeds and determined that they were indeed A1937 and A2234.

Asgrow brought suit against the Winterboers in the Federal District Court for the Northern District of Iowa, seeking damages and a permanent injunction against sale of seed harvested from crops grown from A1937 and A2234. The complaint alleged infringement under 7 U. S. C. 2541(1), for selling or offering to sell Asgrow's protected soybean varieties; under 2541(3), for sexually multiplying Asgrow's novel varieties as a step in marketing those varieties for growing purposes; and under 2541(6), for dispensing the novel varie-

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