No. 92-2038

ASGROW SEED COMPANY, PETITIONER v. DENNY WINTERBOER and BECKY WINTERBOER, dba DEEBEES

on writ of certiorari to the united states court of appeals for the federal circuit

[January 18, 1995]

Justice Stevens , dissenting.

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 dictionary meaning of "marketing" is the act of selling and all acts preparatory thereto. See ante, at 7-8. 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 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 sub category 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 F. 2d 486, 492 (CA Fed. 1992).

This reading of the statute is consistent with our time honored 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.). ^[n.*] The seed at issue is part of a crop planted and harvested by a farmer on his own property. Generally the owner of personal 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 14. 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.

Notes

* "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. 229, 242 (1823).