OCTOBER TERM, 1994
Syllabus
ASGROW SEED CO.
v. WINTERBOER ET AL., DBA DEEBEES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 92-2038. Argued November 7, 1994-Decided January 18,
1995
Petitioner Asgrow Seed Company has protected two varieties of
soybean seed under the Plant Variety Protection Act of 1970 (PVPA),
which extends patent-like protection to novel varieties of sexually
reproduced plants (plants grown from seed). After respondent
farmers planted 265 acres of Asgrow's seed and sold the entire
salable crop-enough to plant 10,000 acres-to other farmers for use
as seed, Asgrow filed suit, alleging infringement under,
inter
alia, 7 U. S. C. § 2541(1), for selling or offering to sell the
seed, and § 2541(3), for "sexually multiply[ing] the novel
varieties as a step in marketing [them] (for growing purposes)."
Respondents contended that they were entitled to a statutory
exemption from liability under § 2543, which provides in relevant
part that "[e]xcept to the extent that such action may constitute
an infringement under [§2541(3)]," a farmer may "save seed ... and
use such saved seed in the production of a crop for use on his
farm, or for sale as provided in this section:
Provided,
That" such saved seed can be sold for reproductive purposes where
both buyer and seller are farmers "whose primary farming occupation
is the growing of crops for sale for other than reproductive
purposes." In granting Asgrow summary judgment, the District Court
found that the exemption allows a farmer to save and resell to
other farmers only the amount of seed the seller would need to
replant his own fields. The Court of Appeals reversed, holding that
§ 2543 permits a farmer to sell up to half of every crop he
produces from PVPA-protected seed, so long as he sells the other
half for food or feed.
Held: A farmer who meets the requirements set forth in §
2543's proviso may sell for reproductive purposes only such seed as
he has saved for the purpose of replanting his own acreage. Pp.
185-193.
(a) Respondents were not eligible for the § 2543 exemption if
their planting and harvesting were conducted "as a step in
marketing" under § 2541(3), for the parties do not dispute that
these actions constituted "sexual multiplication" of novel
varieties. Since the PVPA does not define "marketing," the term
should be given its ordinary meaning. Marketing ordinarily refers
to the act of holding forth property for sale, together with the
activities preparatory thereto, but does not require
180
Syllabus
that there be extensive promotional or merchandising activities
connected with the selling. pp. 185-188.
(b) By reason of the proviso, the first sentence of § 2543
allows seed that has been preserved for reproductive purposes
(saved seed) to be sold for such purposes. However, the structure
of the sentence is such that this authorization does not extend to
saved seed that was grown for the purpose of sale (marketing) for
replanting, because that would violate § 2541(3). As a practical
matter, this means that only seed that has been saved by the farmer
to replant his own acreage can be sold. Thus, a farmer who saves
seeds to replant his acreage, but changes his plans, may sell the
seeds for replanting under the proviso's terms. The statute's
language stands in the way of the limitation the Court of Appeals
found in the amount of seed that can be sold. Pp. 188-192.
982 F.2d
486, reversed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG,
and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, p. 193.
Richard L. Stanley argued the cause for petitioner. With him on
the briefs were John F. Lynch, Bruce Stein, Lawrence C. Maxwell,
and Mary Ellen Morris.
Richard H. Seamon argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days, Assistant Attorney General Hunger, Deputy Solicitor
General Kneedler, Barbara
William H. Bode argued the cause for respondents. With
him on the brief was
Luis M. Acosta. *
*Briefs of
amici curiae urging reversal were filed for
the American Intellectual Property Law Association by
J.
Michael Jakes; and for the American Seed Trade Association
by
Gary Jay Kushner, John G.
Roberts, Jr., and
David G.
Leitch.
Mary Helen Sears filed a brief for Ted Cook as
amicus
curiae urging affirmance.
Briefs of
amici curiae were filed for the Rural
Advancement Foundation International et al. by
David Charles
Masselli; and for James G. McDonald by
Stephen
Gordon.
181
JUSTICE SCALIA delivered the opinion of the Court.
The Plant Variety Protection Act of 1970, 7 U. S. C. § 2321
et seq., protects owners of novel seed varieties against
unauthorized sales of their seed for replanting purposes. An
exemption, however, allows farmers to make some sales of protected
variety seed to other farmers. This case raises the question
whether there is a limit to the quantity of protected seed that a
farmer can sell under this exemption.
I
In 1970, Congress passed the Plant Variety Protection Act
(PVPA), 84 Stat. 1542, 7 U. S. C. § 2321
et seq., in order
to provide developers of novel plant varieties with "adequate
encouragement for research, and for marketing when appropriate, to
yield for the public the benefits of new varieties," § 2581. The
PVP A extends patent-like protection to novel varieties of sexually
reproduced plants (that is, plants grown from seed) which parallels
the protection afforded asexually reproduced plant varieties (that
is, varieties reproduced by propagation or grafting) under Chapter
15 of the Patent Act. See 35 U. S. C. §§ 161-164.
The developer of a novel variety obtains PVP A coverage by
acquiring a certificate of protection from the Plant Variety
Protection Office. See 7 U. S. C. §§ 2421, 2422, 24812483. This
confers on the owner the exclusive right for 18 years to "exclude
others from selling the variety, or offering it for sale, or
reproducing it, or importing it, or exporting it, or using it in
producing (as distinguished from developing) a hybrid or different
variety therefrom." § 2483.
Petitioner, Asgrow Seed Company, is the holder of PVP A
certificates protecting two novel varieties of soybean seed, which
it calls A1937 and A2234. Respondents, Dennis and Becky Winterboer,
are Iowa farmers whose farm spans 800 acres of Clay County, in the
northwest corner of the
182
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 Winterboers 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-
183
ties to others in a form that could be propagated without
providing notice that the seeds were of a protected variety.l
The Winterboers did not deny that Asgrow held valid certificates
of protection covering A1937 and A2234, and that they had sold seed
produced from those varieties for others to use as seed. Their
defense, at least to the §§ 2541(1) and
1 At the time the infringement action was filed, § 2541 provided
in full:
"Except as otherwise provided in this subchapter, it shall be an
infringement of the rights of the owner of a novel variety to
perform without authority, any of the following acts in the United
States, or in commerce which can be regulated by Congress or
affecting such commerce, prior to expiration of the right to plant
variety protection but after either the issue of the certificate or
the distribution of a novel plant variety with the notice under
section 2567 of this title:
"(1) sell the novel variety, or offer it or expose it for sale,
deliver it, ship it, consign it, exchange it, or solicit an offer
to buy it, or any other transfer of title or possession of it;
"(2) import the novel variety into, or export it from, the
United States; "(3) sexually multiply the novel variety as a step
in marketing (for growing purposes) the variety; or
"(4) use the novel variety in producing (as distinguished from
developing) a hybrid or different variety therefrom; or
"(5) use seed which had been marked "Unauthorized Propagation
Prohibited" or "Unauthorized Seed Multiplication Prohibited" or
progeny thereof to propagate the novel variety; or
"(6) dispense the novel variety to another, in a form which can
be propagated, without notice as to being a protected variety under
which it was received; or
"(7) perform any of the foregoing acts even in instances in
which the novel variety is multiplied other than sexually, except
in pursuance of a valid United States plant patent; or
"(8) instigate or actively induce performance of any of the
foregoing acts."
In October 1992, Congress amended § 2541, designating the prior
text as subsection (a) and adding a subsection (b), the provisions
of which are not relevant here. Curiously, however, the references
in § 2543 to the infringement provisions of § 2541 were not amended
to reflect this change. For clarity's sake, therefore, we will
continue to refer to the infringement provisions under their prior
designations,
e. g., §§ 2541(1)-(8), rather than
their current designations,
e. g., §§
2541(a)(1)-(8).
184
(3) charges, rested upon the contention that their sales fell
within the statutory exemption from infringement liability found in
7 U. S. C. § 2543. That section, entitled "Right to save seed; crop
exemption," reads in relevant part as follows:
"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 from seed obtained, or descended from
seed obtained, by authority of the owner of the variety for seeding
purposes and use such saved seed in the production of a crop for
use on his farm, or for sale as provided in this section:
Provided, That without regard to the provisions of
section 2541(3) of this title it shall not infringe any right
hereunder for a person, whose primary farming occupation is the
growing of crops for sale for other than reproductive purposes, to
sell such saved seed to other persons so engaged, for reproductive
purposes, provided such sale is in compliance with such State laws
governing the sale of seed as may be applicable. A bona fide sale
for other than reproductive purposes, made in channels usual for
such other purposes, of seed produced on a farm either from seed
obtained by authority of the owner for seeding purposes or from
seed produced by descent on such farm from seed obtained by
authority of the owner for seeding purposes shall not constitute an
infringement .... " 2
2 Congress has recently amended this section by striking from
the first sentence the words" 'section:
Provided, That' and
all that follows through the period and inserting 'section.'" Plant
Variety Protection Act Amendments of 1994, Pub. L. 103-349, 108
Stat. 3136, 3142. That amendment has the effect of eliminating the
exemption from infringement liability for farmers who sell
PVPA-protected seed to other farmers for reproductive purposes.
That action, however, has no bearing on the resolution of the
185
The Winterboers argued that this language gave them the right to
sell an unlimited amount of seed produced from a protected variety,
subject only to the conditions that both buyer and seller be
farmers "whose primary farming occupation is the growing of crops
for sale for other than reproductive purposes," and that all sales
comply with state law. Asgrow maintained that the exemption allows
a farmer to save and resell to other farmers only the amount of
seed the seller would need to replant his own fields-a limitation
that the Winterboers' sales greatly exceeded. The District Court
agreed with Asgrow and granted summary judgment in its favor. 795
F. Supp. 915 (1991).
The United States Court of Appeals for the Federal Circuit
reversed.
982 F.2d
486 (1992). Although "recogniz[ing] that, without meaningful
limitations, the crop exemption [of § 2543] could undercut much of
the PVP A's incentives,"
id., at 491, the Court of Appeals
saw nothing in § 2543 that would limit the sale of protected seed
(for reproductive purposes) to the amount necessary to plant the
seller's own acreage. Rather, as the Court of Appeals read the
statute, § 2543 permits a farmer to sell up to half of every crop
he produces from PVPA-protected seed to another farmer for use as
seed, so long as he sells the other 50 percent of the crop grown
from that specific variety for nonreproductive purposes,
e.
g., for food or feed. The Federal Circuit denied Asgrow's
petition for rehearing and suggestion for rehearing en banc by a
vote of six judges to five.
989 F.2d
478 (1993). We granted certiorari. 511 U. S. 1029 (1994).
II
It may be well to acknowledge at the outset that it is quite
impossible to make complete sense of the provision at issue
present case, since the amendments affect only those
certificates issued after April 4, 1995, that were not pending on
or before that date. See
id., §§ 14(a), 15, 108 Stat. 3144,
3145.
186
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 (1,)
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
187
varieties for growing purposes. If they were, the Winterboers
were not eligible for the § 2543 exemption, and the District Court
was right to grant summary judgment to Asgrow.
The PVPA does not define "marketing." When terms used in a
statute are undefined, we give them their ordinary meaning.
FDIC v.
Meyer, 510 U. S. 471, 476
(1994). The Federal Circuit believed that the word "marketing"
requires "extensive or coordinated selling activities, such as
advertising, using an intervening sales representative, or similar
extended merchandising or retail activities." 982 F. 2d, at 492. We
disagree. Marketing ordinarily refers to the act of holding forth
property for sale, together with the activities preparatory thereto
(in the present case, cleaning, drying, bagging, and pricing the
seeds). The word does not require that the promotional or
merchandising activities connected with the selling be extensive.
One can market apples by simply displaying them on a cart with a
price tag; or market a stock by simply listing it on a stock
exchange; or market a house (we would normally say "place it on the
market") by simply setting a "for sale" sign on the front lawn.
Indeed, some dictionaries give as one meaning of "market" simply
"to sell." See,
e. g., Oxford Universal Dictionary
1208 (3d ed. 1955); Webster's New International Dictionary 1504 (2d
ed. 1950). Of course, effective selling often involves extensive
promotional activities, and when they occur they are all part of
the "marketing." But even when the holding forth for sale relies
upon no more than word-of-mouth advertising, a marketing of goods
is in process. Moreover, even if the word "marketing" could, in one
of its meanings, demand extensive promotion, we see no reason why
the law at issue here would intend that meaning. That would have
the effect of preserving PVP A protection for less valuable plant
varieties, but eliminating it for varieties so desirable that they
can be marketed by word of mouth; as well as the effect of
requiring courts to ponder the difficult question of how much
promotion is necessary to constitute marketing. We
188
think that when the statute refers to sexually multiplying a
variety "as a step in marketing," it means growing seed of the
variety for the purpose of putting the crop up for sale.3 Under the
exception set out in the first clause of § 2543, then, a farmer is
not eligible for the § 2543 exemption if he plants and saves seeds
for the purpose of selling the seeds that they produce for
replanting.
Section 2543 next provides that, so long as a person is not
violating either §§ 2541(3) or (4),
"it shall not infringe any right hereunder for a person to
save seed produced by him from seed obtained, or descended
from seed obtained, by authority of the owner of the variety for
seeding purposes 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.)
Farmers generally grow crops to sell. A harvested soybean crop
is typically removed from the farmer's premises in short order and
taken to a grain elevator or processor. Sometimes, however, in the
case of a plant such as the soybean, in which the crop is the seed,
the farmer will have a portion of his crop cleaned and stored as
seed for replanting his fields next season. We think it clear that
this seed
saved for replanting is what the provision
under discussion means by
3 The dissent asserts that the Federal Circuit's more demanding
interpretation of "marketing" is supported by the ancient doctrine
disfavoring restraints on alienation of property, see
post,
at 194-195. The wellspring of that doctrine, of course, is concern
for property rights, and in the context of the PVPA it is the
dissent's interpretation, rather than ours, which belittles that
concern. The whole purpose of the statute is to create a valuable
property in the product of botanical research by giving the
developer the right to "exclude others from selling the variety, or
offering it for sale, or reproducing it, or importing it, or
exporting it," etc. 7 U. S. C. § 2483. Applying the rule
disfavoring restraints on alienation to interpretation of the PVPA
is rather like applying the rule disfavoring restraints upon
freedom of contract to interpretation of the Sherman Act.
189
"saved seed"-not merely regular uncleaned crop that is stored
for later market sale or use as fodder.
There are two ways to read the provision, depending upon which
words the phrase "for sale as provided in this section" is taken to
modify. It can be read "production of a crop ... for sale as
provided in this section"; or alternatively "use such saved seed
... for sale as provided in this section." The parallelism created
by the phrase
"for use on his farm" followed immediately by
"or
for sale as provided in this section" suggests the
former reading. But the placement of the comma, separating "use
[of] such saved seed in the production of a crop for use on his
farm," from "or for sale," favors the latter reading. So does the
fact that the alternative reading requires the reader to skip the
lengthy
"Provided, That" clause in order to find out what
sales are "provided [for] in this section"-despite the parallelism
between "provided" and
"Provided," and despite the presence
of a colon, which ordinarily indicates specification of what has
preceded. It is surely easier to think that at least some of the
sales "provided for" are those that are "Provided" after the colon.
(It is, of course, not unusual, however deplorable it may be, for
"Provided, That" to be used as prologue to an addition rather than
an exception. See
Springer v.
Philippine Islands,
277 U. S. 189,
206 (1928); 1A N. Singer, Sutherland on Statutory Construction §
20.22 (5th ed. 1992).)
We think the latter reading is also to be preferred because it
lends greater meaning to all the provisions. Under the former
reading ("production of a crop ... for sale as provided in this
section"), the only later text that could be referred to is the
provision for "bona fide sale[s] for other than reproductive
purposes" set out in the second sentence of § 2543-the so-called
"crop exemption." (The proviso could
not be referred to,
since it does not provide for sale of
crops grown from saved
seed, but only for sale of saved seed itself.) But if the "or for
sale" provision has such a limited referent, the opening clause's
("Except to the extent that ... ") reservation
190
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.
191
discussed exception to the exemption would apply. As a practical
matter, since § 2541(1) prohibits all unauthorized transfer of
title to, or possession of, the protected variety, this means that
the only seed that can be sold under the proviso is seed that has
been saved by the farmer to replant his own acreage.5 (We think
that limitation is also apparent from the text of the crop
exemption, which permits a farm crop from saved seeds to be
sold-for nonreproductive purposes-only if those saved seeds were
"produced by descent
on such farm." (Emphasis added.) It is
in our view the proviso in § 2543, and not the crop exemption, that
authorizes the permitted buyers of saved seeds to sell the crops
they produce.) Thus, if a farmer saves seeds to replant his
acreage, but for some reason changes his plans, he may instead sell
those seeds for replanting under the terms set forth in the proviso
(or of course sell them for nonreproductive purposes under the crop
exemption).
It remains to discuss one final feature of the proviso
authorizing limited sales for reproductive purposes. The proviso
allows sales of saved seed for replanting purposes only between
persons "whose primary farming occupation is the growing of crops
for sale for other than reproductive purposes." The Federal
Circuit, which rejected the proposition
5 For crops such as soybeans, in which the seed and the harvest
are one and the same, this will mean enough seeds for one year's
crop on that acreage. Since the germination rate of a batch of seed
declines over time, the soybean farmer will get the
year-after-next's seeds from next year's harvest. That is not so
for some vegetable crops, in which the seed is not the harvest, and
a portion of the crop must be permitted to overripen ("go to seed")
in order to obtain seeds. One of the
amici in the Court of
Appeals asserted (and the parties before us did not dispute) that
it is the practice of vegetable farmers to "grow" seeds only every
four or five years, and to "brown bag" enough seed for four or five
future crops. A vegetable farmer who sets aside protected seed with
subsequent replantings in mind, but who later abandons his plan
(because he has sold his farm, for example), would under our
analysis be able to sell all his saved seed, even though it would
plant (in a single year) four or five times his current
acreage.
192
that the only seed sellable under the exemption is seed saved
for the farmer's own replanting, sought to achieve some limitation
upon the quantity of seed that can be sold for reproductive
purposes by adopting a "crop-by-crop" approach to the "primary
farming occupation" requirement of the proviso. "[B]uyers or
sellers of brown bag seed qualify for the crop exemption," it
concluded, "only if they produce a larger crop from a protected
seed for consumption (or other nonreproductive purposes) than for
sale as seed." 982 F. 2d, at 490. That is to say, the brown-bag
seller can sell no more than half of his protected crop for seed.
The words of the statute, however, stand in the way of this
creative (if somewhat insubstantial) limitation. To ask what is a
farmer's "primary farming occupation" is to ask what constitutes
the bulk of his total farming business. Selling crops for other
than reproductive purposes must constitute the preponderance of the
farmer's business, not just the preponderance of his business in
the protected seed. There is simply no way to derive from this text
the narrower focus that the Federal Circuit applied. Thus, if the
quantity of seed that can be sold is not limited as we have
described-by reference to the original purpose for which the seed
is saved-then it is barely limited at all (i.
e., limited
only by the volume or worth of the selling farmer's total crop
sales for other than reproductive purposes). This seems to us a
most unlikely result.
***
We hold that a farmer who meets the requirements set forth in
the proviso to § 2543 may sell for reproductive purposes only such
seed as he has saved for the purpose of replanting his own acreage.
While the meaning of the text is by no means clear, this is in our
view the only reading that comports with the statutory purpose of
affording "adequate encouragement for research, and for marketing
when appropriate, to yield for the public the benefits of new
varieties." 7 U. S. C. § 2581. Because we find the sales here were
un-
193
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
Reversed.
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
194
in selling. If "marketing" can be no broader than "selling," and
if Congress did not intend the two terms to be coextensive, then
"marketing" must encompass something less than all "selling."
The statute as a whole-and as interpreted by the Court of
Appeals-indicates that Congress intended to preserve the farmer's
right to engage in so-called "brown-bag sales" of seed to
neighboring farmers. Congress limited that right by the express
requirement that such sales may not constitute the "primary farming
occupation" of either the buyer or the seller. Moreover, §
2541(a)(3) makes it abundantly clear that the unauthorized
participation in "marketing" of protected varieties is taboo. If
one interprets "marketing" to refer to a subcategory of selling
activities, namely, merchandising through farm cooperatives,
wholesalers, retailers, or other commercial distributors, the
entire statute seems to make sense. I think Congress wanted to
allow any ordinary brown-bag sale from one farmer to another; but,
as the Court of Appeals concluded, it did not want to permit
farmers to compete with seed manufacturers on their own ground,
through "extensive or coordinated selling activities, such as
advertising, using an intervening sales representative, or similar
extended merchandising or retail activities." 982
This reading of the statute is consistent with our timehonored
practice of viewing restraints on the alienation of property with
disfavor. See,
e. g., Sexton v.
Wheaton,
8 Wheat. 229, 242 (1823) (opinion of Marshall, C. J.).* The
seed at issue is part of a crop planted and harvested by a farmer
on his own property. Generally the owner of per-
* "It would seem to be a consequence of that absolute power
which a man possesses over his own property, that he may make any
disposition of it which does not interfere with the existing rights
of others, and such disposition, if it be fair and real, will be
valid. The limitations on this power are those only which are
prescribed by law."
Sexton v.
Wheaton, 8 Wheat., at
242.
195
sonal property-even a patented or copyrighted article-is free to
dispose of that property as he sees fit. See,
e. g.,
United States v.
Univis Lens Co., 316 U. S. 241, 250-252
(1942); Bobbs-Merrill Co. v.
Straus, 210 U. S. 339, 350-351
(1908). A statutory restraint on this basic freedom should be
expressed clearly and unambiguously. Cf.
Deepsouth Packing
Co. v.
Laitram Corp., 406 U. S. 518, 530-531
(1972). As the majority recognizes, the meaning of this statute is
"by no means clear."
Ante, at 192. Accordingly, both because
I am persuaded that the Court of Appeals correctly interpreted the
intent of Congress, and because doubts should be resolved against
purported restraints on freedom, I would affirm the judgment
below.
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