Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 8 (1995)

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186

ASGROW SEED CO. v. WINTERBOER

Opinion of the Court

here. One need go no further than the very first words of its title to establish that. Section 2543 does not, as that title claims and the ensuing text says, reserve any "[r]ight to save seed"—since nothing elsewhere in the Act remotely prohibits the saving of seed. Nor, under any possible analysis, is the proviso in the first sentence of 2543 ("Provided, That") really a proviso.

With this advance warning that not all mysteries will be solved, we enter the verbal maze of 2543. The entrance, we discover, is actually an exit, since the provision begins by excepting certain activities from its operation: "Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him . . . and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section . . . ." (Emphasis added.) Thus, a farmer does not qualify for the exemption from infringement liability if he has

"(3) sexually multipl[ied] the novel variety as a step in marketing (for growing purposes) the variety; or (4) use[d] the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom." 7 U. S. C. 2541(3)-(4).

In 1990, the Winterboers planted 265 acres of Asgrow protected variety seed and collected a harvest of 12,037 bushels of soybeans. The parties do not dispute that this act of planting and harvesting constituted "sexual multiplication" of the novel varieties. See 7 U. S. C. 2401(f) (defining "sexually reproduced" seed to include "any production of a variety by seed"). The Winterboers sold almost all of these beans for use as seed (i. e., "for growing purposes"), without Asgrow's consent. The central question in this case, then, is whether the Winterboers' planting and harvesting were conducted "as a step in marketing" Asgrow's protected seed

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