Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 15 (1995)

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Cite as: 513 U. S. 179 (1995)

Stevens, J., dissenting

lawful, we do not reach the second question on which we granted certiorari—whether sales authorized under 2543 remain subject to the notice requirement of 2541(6).

The judgment of the Court of Appeals for the Federal Circuit is


Justice Stevens, dissenting.

The key to this statutory puzzle is the meaning of the phrase, "as a step in marketing," as used in 7 U. S. C. 2541(a)(3) (1988 ed., Supp. V). If it is synonymous with "for the purpose of selling," as the Court holds, see ante, at 188, then the majority's comprehensive exposition of the statute is correct. I record my dissent only because that phrase conveys a different message to me.

There must be a reason why Congress used the word "marketing" rather than the more common term "selling." Indeed, in 2541(a)(1), contained in the same subsection of the statute as the crucial language, Congress made it an act of infringement to "sell the novel variety." Yet, in 2541(a)(3), a mere two clauses later, Congress eschewed the word "sell" in favor of "marketing." Because Congress obviously could have prohibited sexual multiplication "as a step in selling," I presume that when it elected to prohibit sexual multiplication only "as a step in marketing (for growing purposes) the variety," Congress meant something different.

Moreover, as used in this statute, "marketing" must be narrower, not broader, than selling. The majority is correct that one meaning of "marketing" is the act of selling and all acts preparatory thereto. See ante, at 187. But Congress has prohibited only one preparatory act—that of sexual multiplication—and only when it is a step in marketing. Under the majority's broad definition of "marketing," prohibiting sexual multiplication "as a step in marketing" can be no broader than prohibiting sexual multiplication "as a step in selling," because all steps in marketing are, ultimately, steps


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