judgment and entered judgment in favor of mr bowman because we believe that the seeds that were sold to mr bowman writes in those were exhausted as a matter of law in the alternative we asked this court vacate the district court's damages  and find that monsanto failed to mark the seeds that were in the grain elevator that were sold to mr boat in this case the allegedly infringing activity involved mr bowman planting commodity seeds that  thing that there has to be knowledge and general talk victors so what is the knowledge situation here with respect to boehm if you assume that there was a field and i believe that i notice that it's actually important to the general talking pictures cases from noticed by the licensee who's who's making that sale we don't argue that it's a licensee was acting outside the scope of his license is not subject to play for patent infringement  we agreed that sales made by licensees outside the scope of their license are subject to patent for it and that the purchaser who purchases with knowledge is also on absolutely absolutely and i think reason and i think you touched on this too just like the reason that the sale of general talking pictures was unauthorized and outside the scope of his license it was because the seller knew that the purchaser was not going to use it personal use i submit that if the seller in that case you know talking pictures reasonably believe that this purchaser was going to make a personal use within the scope of the license that would have been a lawful sale there would have been exhaustion that the key point for the exhaustion doctrine is the exercise of the of the  so that's what i mean about accommodating yourself that general ploy because we've got it i mean it may be the supreme court doesn't like general talking pictures but it's our job to apply it the way they wrote it it hasn't been the rule i think that these are the position for me to take at this point we don't believe that general talking pictures is the control case and that's because this is not a situation of a limited field if you slice a c making a sale outside the scope of its last what we have here and what i mean it seems to me that that's the heart of the question that we have at least three parties here we've got the original farmer who sold the green we got the green elevator and we've got them right in to what do we know if anything about the sale from the original form or the grain elevator the original farmer would violate his license if he sold the seeds for planting but we don't know do we whether the original form are sold with a grain elevator for planting in fact maybe the structure or the industry suggests that there's no discussion about the use of the seeds when you sell it to rain all of it or i assume that there is no discussion but i don't know and that's not something that was tested but  you know the except hypothetically ok you're wrong ok ok in the right of if the purchaser knew the purchaser is also liable for infringement so we or to ask with the trying to figure out how that fits in with the fact situation here the original former would exceed the scope of his license a piece sold the seed for purposes of planting but we don't know whether that happened or not a bit of the difference here is that you got to sa general talking picture of a license see with limited rights to sell we have sales by one santo with all rights to sell sales by los santos licensed seat sellers which according to the cases that we've cited in our briefs have complete rights to sell this is not a you have one lawful use and one unlawful use that proper lawful uses to sell and this food the unlawful use is to use it for seat and so it is it seems to me you do have an option of what to do with the first seeds yes you put them in the ground but then your options are one you use your obligation is to use it is food right well what happens after you plant them in it and the new seeds grow the farmer that is accept that but again it's one general talking pictures that these infringer and the person he sells to is an infringer too if he knows about the license limitation care so how does that fit into the facts here is original seeds that were sold subject of the technology green so why isn't this a case in which mr bowman regardless of where he obtained the seeds is infringing the patent on the genetic machine we'll call it the replicator which is a machine that will reverse engineer and replicate any electronic circuit all you have to do is you put it in the machine and pull it down and in the machine will pop out an exact in the replicator well but you but you are actually taking molecules and you were manipulating and making things these seeds are not made they are the product of use that you plant the seeds and if you want to use those seeds that you buy for such a the first generation seeds the second generations seeds sprout or there are a lot of things you can do with them and obviously farmers do it with a purpose of creating a crop that they can this well that they can use policy goals of our law is to settle title in personal property and i believe that when an order when a farmer takes ownership of that sea plants the seed and grows more seats he gives a matter of fact it does in the seats and  restrictions then you might be liable for contract law and if it doesn't leave monsanto without a remedy without an ability to exploit their technology they can enter into contracts with grain elevators they can enter into contracts with far worse they can be  more vigilant on enforcing where their seat goes i think there as a it's a very logical policy goal to make sure that we identify and separate separate the genetically modified foods from non genetic be modified foods current there is no source about that because i suppose the original farmer in the technology was sells to the train operator he has no idea what the grain elevator is going to do with the normally grain elevators stuff for consumption is he exceeding the sale because all that he has been authorized by mance have to do is transfer the use of those soybeans as a commercial crop as food or feet and not for replant because you're requiring the license agreement that he security this goes also to your question about whether he had knowledge if you think about it in terms of the general talking pictures point i mean that the custom is the grain out to be eight to be eight to sell seed in indiana and elsewhere there that he had sort of hit upon what he thought was a bright idea which is i can get cheap so he beings for myself and at the time he purchased at whatever gets you he do he knew that he knew that this was the point of it and he was very happy to disc was a transfer only of limited use rights because the only the only right that monsanto had ever granted to that grower to do with the second generation seed was to sell it as a commercial crop because i actually think that the supreme court case law says that the limited use of the article follows the article and indeed in mitchell versus hawley which is the kind of believing that it's a hard read well i think that pictures emphasizes the wall well general talking pictures certainly did emphasize that the purchaser had knowledge as well as a seller but mitchell versus holly which is the case involving the hat felting machines and in that case  the patent he authorized the manufacturer to sell the machines for the duration of the patent and then the patent was only and the recipient could only use them during the original patent term and then the patent term was extended and the supreme court said you can still go after the person who was using them after the patent term was extended because they never got an additional license for that additional time and it doesn't matter that they were sieved products that were sold by monsanto we're talking about on g bret several generations removed from those products why does patent exhaustion have anything to do when you're not talking about right generation seed i don't i mean this court has already rejected the argument that the sale of the first generation seed exhausts anything in the second and third because those are entirely different articles yes they exhibit the same the same genetic trait but the court made clear in scrubs and in macfarlane one that that one has to examine whether each generation to see whether the patent rights were exhausted just as you would have to  see the same i think that's exactly right and i think that that really does relate to one of the principal purposes of the exhaustion rule which is that the the notion is that when somebody makes an unconditional authorized sale of the item the patent he gets his full reward in that that he might be expected to get also at a price that would make commercialization of the invention reasonable but in the case of self replicating technology especially  is not an argument that you have made so far right no that isn't art i mean that is definitely an argument that features in our brief that the sale of the first generation article does not does not mean assuming it even assuming that that's an exhausting sale of that article and we actually don't agree with that but the sale of the first generation article does not really tell you anything about pat about exhaustion of patent rights in the second generation or the third generation one thing here though is ri seed and reading a new generation well it would certainly be an act of infringement to plant the second generation seed and make a third generation court is that several cases involving monsanto's damages model and it's also reflected in the expert opinion in this case and that as the court has understood it there's no way that monsanto could sort of recruits investment for multiple generations of soybeans by charging a technology fee in the first generation because it would just be it would be prohibitively expensive and the invention would never be would never become marginalized accessing i think the  as a little bit possibly the reverse actually judged like which is what quanta actually says is it's not enough that you just tell your licensee tell the next person you can't do it you know in other words that if there were no restrictions placed on what intel intel could do with the the manufactured products that embody the invention but here in fact i think it's sort of the mirror image of that which is actually monsanto makes quite clear to the growers the only thing you can do with the second generation c is to sell them as a commercial crop and that and that is i think that is a limited use restriction on the on the second generation just as the the particular  use of the amplifiers was in general talking pictures they could only be sent into one channel of commerce and not into another and case the general talking pictures sites and discusses the good your rubber case suppose in general recognize the general talking pictures points out that there is that there was knowledge but i think that there is a good argument that that would be an infringer because even worse and correct because the product is only being sent into one authorized channel channel and that was in general talking pictures it was home use and not come on show use and i think the idea is that you know what one of the ideas is that the patentee is entitle to decide what uses the object is going to be put to it and its investment it would work its investment quite differently here i think it's quite similar and that is think this is court has recognized on many occasions if monsanto weren't able to strictly limit what the second generation seeds second generation season soybeans were done it would could could very well quickly put it's outs itself out of business and that is that there's nothing magical i think about the fact that the say that the purchase was from the grain elevator if if a farmer had said to his neighbor and said you know use this to feed your hobbes but the neighbor or the neighbor then converted it to planting purposes the neighbors proper exhaustive analysis and also as we pointed out exhaustion is an affirmative defense so i think the burden is not on us to in any event to establish what the subject of that conversation was the cause it's nothing further thank you thank you i'd like to touch briefly on something that was said by my colleague about mr bowman coming up with this idea to plant the commodity seeds and it's something that he'd been doing for a long long time before monsanto came around it is something that farmers have been doing for generations in that area second cropping using seeds that come from a commodity source that's a riskier crop they need to have the ability to do that and that's what mom said that's what mr bowman was trying to do on the idea of whether or not there was this was an unconditional sale and the citations to michel be holly the seller in which will be holly again was a licensed c and i think it's important to understand what the supreme court means when it says conditional sale back in the late  hundred s and it means a sale that is where title doesn't pass and i think you can see the case the reason for this is harkness versus russell it says that a conditional sale is quote mere agreements to sell upon a condition to be performed or a sale quote with a reservation of a lien or mortgage to secure the purchase money it's not these are absolute sales that are happening in this case these are not conditional sales as that term was used that is a departure from the traditional exhaustion doctrine and they were both based on the malaprop case and that's why they were decided the way they were they didn't confront the argument that we're making here and that is when a owner of those se plants them and uses them exercises his or her right to use them he's vested with him or she is best with full title and those seeds and can dispose of them as as he or she wishes and on this idea of whether or not most santo gets full reward or for their investment i don't know if there's any evidence from the record as to what the value of the technology is and they'll charge an awful high price i know that but i don't know i don't know there's any evidence that they're not getting full value for that when they collect their money upfront and they can also discovered that the were substantially correct and i want to be careful because roundup ready there's a think there's the pact infringement and whether or not the season finished the patent and then there is mr bones test finding that some of those seeds survived application of those that does mr bowman test equate to infringement i don't know but he did test them to see if they were resistant to