Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 12 (1995)

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190

ASGROW SEED CO. v. WINTERBOER

Opinion of the Court

of 2541(3) infringement liability (i. e., liability for growing as a step in marketing for reproductive purposes) would be devoid of content, since the provision to which it is attached would permit no sales for reproductive purposes. Under the latter reading, by contrast, the farmer may not "use [his] saved seed . . . for sale" as the proviso allows if the seed was intentionally grown for the purpose of such sale—i. e., "sexually multipl[ied] . . . as a step in marketing (for growing purposes) the variety." 4 A second respect in which our favored reading gives greater meaning to the provision is this: The other reading ("crop . . . for sale as provided in this section") causes the "permission" given in the opening sentence to extend only to sales for nonreproductive purposes of the crops grown from saved seed, as opposed to sales of the saved seed itself. But no separate permission would have been required for this, since it is already contained within the crop exemption itself; it serves only as a reminder that crop from saved seed can be sold under that exemption—a peculiarly incomplete reminder, since the saved seed itself can also be sold under that exemption.

To summarize: By reason of its proviso the first sentence of 2543 allows seed that has been preserved for reproductive purposes ("saved seed") to be sold for such purposes. The structure of the sentence is such, however, that this authorization does not extend to saved seed that was grown for the very purpose of sale ("marketing") for replanting—because in that case, 2541(3) would be violated, and the above-4 This reading also gives meaning to the proviso's statement that "without regard to the provisions of section 2541(3) . . . it shall not infringe any right hereunder" for a person to engage in certain sales of saved seed for reproductive purposes (emphasis added). This serves to eliminate the technical argument that a production of seed that was originally in compliance with 2541(3) (because it was not done as a step in marketing for reproductive purposes) could retroactively be rendered unlawful by the later sale permitted in the proviso, because such sale causes the earlier production to have been "a step in the marketing" for reproductive purposes.

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