Bt-Corn Patent Unenforceable Due to Failure to Submit Internal Employee Notes

PatentLawPic167Monsanto v. Bayer (Fed. Cir. 2008)

Bayer holds several patents relating to genetically modified Bt corn.  This case arose when Monsanto sued Bayer in Missouri for a declaratory judgment stating that the patents were not infringed; invalid; and unenforceable.  The Eastern District of Missouri Court (Judge Webber) held all the patents unenforceable due to inequitable conduct during prosecution. On appeal, the Federal Circuit affirmed the holding of unenforceability.

Bt corn contains a gene that codes for Bt toxin — an insect repellent protein found naturally in Bacillus thuringiensis (Bt) bacteria. Bayer’s patents cover the chimeric Bt-plant-promoter gene; plant cells expressing Bt toxin; plants expressing Bt toxin; and the method of modifying plants to express Bt toxin.

Notes from a Conference: Before Bayer’s patent application, another scientist (Dr. Wayne Barnes) attended a conference and presented a poster on Bt genetic issues.  One Bayer scientist attended the conference and took extensive notes from the poster. Those notes were given to other Bayer Bt scientists including the individual responsible for prosecuting Bayer’s patent applications.

During prosecution, Bayer submitted Dr. Barnes Abstract, but did not submit the notes. According to the court, those notes were material because they provided evidence of Dr. Barnes disclosure. (A reasonable examiner would have considered them “important in deciding whether to allow the … application”). The inference of intent was easily made since Bayer took a position at the PTO that was directly refuted by information contained in the note.

Not Prior Art: One important – but unstated – aspect of this case is that the notes are not prior art. Rather, in this case the prior art was the publicly displayed poster.  Thus, the reminder: Rule 56 requires submission of prior art as well as information about the prior art that is either (1) material to patentabilty or (2) a reasonable examiner would consider important in deciding whether to allow the application. 

Declaratory Judgment Power: Monsanto filed its DJ action against four Bayer patents. In response, Bayer provided a “statement of non-liability” along with a promise not to sue Monsanto on three of the patents. Under CAFC precedent, such a statement normally removes a court’s jurisdiction over those patents — except where, as here, the court retains separate jurisdiction based on a Section 285 request for attorney fees. Thus, because the patents are still before the court, it retains jurisdiction to hold them unenforceable. In addition, the CAFC noted that the recent Nilssen case also allows a court to hold patents unenforceable even after being dropped from the lawsuit.

55 thoughts on “Bt-Corn Patent Unenforceable Due to Failure to Submit Internal Employee Notes

  1. If the materiality standaard is really that broad, then all notebook records should be submitted, all notes from internal and external meetings should be submitted. Should we even submit records of business meetings of a ptotential product where only some/or even none of the patentabel aspects are discussed?

    This is a lsippery slope gentlemen, and it should hae stopped at the point of certainty – and that is cataloguing. Period.

  2. Mr. Hutz -

    I may be wrong, but I believe ex..6k’s point is that the napkin nailed to the door is a publication under 102(a) if it is publicly accessible. Compare In re Klopfenstein, where a poster displayed at a meeting for 3+ days was the publication because there was no evidence of confidentiality, members of the relevant scientific community exercising reasonable diligence could study the invention described in the poster, and the invention was relatively simple. Many factors must be considered in whether it was publicly accessible.

  3. examiner#6k wrote “Hellllooooo out there, ANYTHING that any information someone found being publicly accessible IS prior art. Doesn’t matter if it was a napkin nailed to a door of a pub. Good lord people, stop thinking with your rears. If you saw someone else with it, you cannot claim it, nor an obvious varient of it. Don’t even try. We’ll all be a lot happier for your resisting temptation.”

    This is incorrect. Go back to your MPEP. It may be material to prosecution, but it it has to fall under one of the 102 categories to be prior art.

  4. “… to prove to a certainty what the poster said …”

    Since when does “material,” as in “material to patentability” mean “proving to a certainty?” For that matter, since when is “proving to a certainty” a standard for anything?

    Had the applicant submitted the notes, he might well have persuaded the office on exactly the grounds you suggest. But that doesn’t mean the notes weren’t material.

  5. …and the poster and abstract were the work of another, but the notes from the poster were a derivative work by that author – but that work was not published.

    Again, how does the derivative work get before the Examiner? The derived work did not mean the deriver invented it, but that only that someone invented something similar that the author saw prior. It should not, and does at least to me, show that the invention was of another as there is no way to know what his notes really meant and how closely they reflect the poster. How the heck can use use notes taken from a poster done by someone else to prove to a certainty what the poster said? Maybe there is something in the dpeostitions here that we dont see, but seems weird to me still.

  6. “dont notes related to an admission of derivation go to an inventorship issue, not a prior art effect?”

    That’s related to the issue I was alluding to earlier: 102(f) and 102(g) “art” is prior art for 103 purposes (and therefore relevant to patentability) as long as it’s the work of “another”.

  7. It was an admission of possible derivation, which is different from the sweeping comments of Mr. 6k.

    That said – dont notes related to an admission of derivation go to an inventorship issue, not a prior art effect? The Examiner does not decide inventorship, thus the art was properly not before him. Am I missing something in the facts? I need to reread with this interpretation….

  8. me “As for the point – under current case law the poster might be found to be prior art. My opinion is that it should not be. How can you prove what was on any poster at a meeting ten years ago?”

    In this case, I think it was important that the evidence was effectively an admission by the patentee.

  9. “Me- It’s prior art because those 49 other people probably all went back to their univ. and taught each of their 25 students about it on slide 103 of BIOTECH 102 handout collection 2. I swear to god, it’s ignorance like this that both pays my rent and makes me have a massive headache every day after work. ”

    Oh, I will put my patent law knowledge and intelligence against you any day and win hands down.

    As for the point – under current case law the poster might be found to be prior art. My opinion is that it should not be. How can you prove what was on any poster at a meeting ten years ago? How can you prove that any persons notes reflect the content of the poster and do not contain that individuals interpretation and thoughts (the notetaker).

    As for statement on what is taught in Biology, genetics, molecular biology and any other biotech course you wish to name – taught them all myself. 9.9999999% of undergrad courses have nothing cutting edge in them, most grads courses do not, and the courses that do are largely taught from papers (the literature you simpleton), and are certainly not taught from posters at a meeting with an interpretation from notes taken by one who may or may not know the field.

    Examiner 6k – proving once again………

  10. Still not sure how I’m being smacked down. Of course, I don’t understand that baby talk you insist on using in your posts, so I’ll probably never understand your unintelligble rants.

    Even your BFF Malcolm has now seen fit to point out the idiOcy of your posts.

    Now that seems like a smack down to me.

    And I’m pretty sure I could make a decent living chasing ambulances or handling divorces. But you pretty much know that you’re not qualified to do anything except game the PTO production system. Not sure what you’ll be doing once the patent system is gone.

  11. The only thing making me “jaded” is that people who “care about the law and its application” attempt on a daily basis to conduct a “zealous pursuit” of claims that encompass more than they know they ought, and disregard their ethical obligations in order to do so.

  12. “Finally, MM, you know good and well that I know why everyone wants to know what section it’s under. So that they can attempt to bs the system in some form or fashion.”

    It may be hard for you (as jaded as you appear to be) to believe that most practitioners care about the law and its application. In this case, identifying the section to which the poster or notes may be material is crucial to understanding the law and how it might apply to future cases we might encounter.

  13. Someone’s bitter they’re getting smacked down huh VA? It’s fine, keep doing what you’re doing until you all screw yourselves (and the system) so badly you put yourselves and your zeal out of business and have to chase ambulances, or heck, who knows, maybe you can do divorce. Who’s up for a rousing game of “5/25, o please mr examiner call me and tell me what’s allowable”?

    Me- It’s prior art because those 49 other people probably all went back to their univ. and taught each of their 25 students about it on slide 103 of BIOTECH 102 handout collection 2. I swear to god, it’s ignorance like this that both pays my rent and makes me have a massive headache every day after work.

    It’s as if you old timers are freaking clueless as to what goes on now aren’t you? It’s just the same ol’ same ol’ from back in the 90′s to you guys isn’t it? Learning from books that were 1 thousand pages of bullshit that everyone in the art already took for granted and didn’t even scratch the surface of what is known in the current art. Guess what, in school we all now get a heaping portion of all that, and then we get a side order or two of what’s going on in the art. That would be the stuff on that guys poster (that he likely now puts on his website, blog, etc. also).

    Finally, MM, you know good and well that I know why everyone wants to know what section it’s under. So that they can attempt to bs the system in some form or fashion. It still won’t matter when it is found out that the public knew x information that they had (just as a member of the informed public) before their “inventing” went down, and they’re still going to be just as screwed.

  14. Someone’s bitter they’re getting smacked down huh VA? It’s fine, keep doing what you’re doing until you all screw yourselves (and the system) so badly you put yourselves and your zeal out of business and have to chase ambulances, or heck, who knows, maybe you can do divorce. Who’s up for a rousing game of “5/25, o please mr examiner call me and tell me what’s allowable”?

    Me- It’s prior art because those 49 other people probably all went back to their univ. and taught each of their 25 students about it on slide 103 of BIOTECH 102 handout collection 2. I swear to god, it’s ignorance like this that both pays my rent and makes me have a massive headache every day after work.

    It’s as if you old timers are freaking clueless as to what goes on now aren’t you? It’s just the same ol’ same ol’ from back in the 90′s to you guys isn’t it? Learning from books that were 1 thousand pages of bullshit that everyone in the art already took for granted and didn’t even scratch the surface of what is known in the current art. Guess what, in school we all now get a heaping portion of all that, and then we get a side order or two of what’s going on in the art. That would be the stuff on that guys poster (that he likely now puts on his website, blog, etc. also).

    Finally, MM, you know good and well that I know why everyone wants to know what section it’s under. So that they can attempt to bs the system in some form or fashion. It still won’t matter when it is found out that the public knew x information that they had (just as a member of the informed public) before their “inventing” went down, and they’re still going to be just as screwed.

  15. “I don’t believe that is so shocking considering that it appears to be a completely losing argument.”

    Well, they thought it was worth bringing up on appeal. The thing is: sometimes those completely losing arguments actually work.

    That’s why the “kitchen sink” approach is almost always the best course. Waive nothing.

  16. “In Bayer’s reply brief, Bayer argues FOR THE FIRST TIME(!!!!) that even if its other arguments fail the Mariani notes lack materiality because they would have been “merely cumulative””

    I don’t believe that is so shocking considering that it appears to be a completely losing argument. From the explanation in the opinion, the notes were not fairly easily seen to not be merely cumulative.

  17. “Is it available under 102(b)? Is it available under 102(g)? The fact of the matter is simply that when you get in court trying to sue someone with it and the court holds it ANTICIPATED, or OBVIOUS you’re not going to give two shits about what section it’s under are you?”

    Well, yes we are going to care because that affects how we go about trying to remove the art from consideration.

    Duh.

  18. Examiner#6k,

    First, we are lawyers or agents, and we have to know how prior art qualifies under one or another section of 102, or is material under rule 56, in order to counsel our clients. They often want us to cite particular sections of the code or the rules in order to back up what we say. We also always have to cite the proper code/rule when we write opinions (on invalidity, etc.) for our client. Therefore, we discuss it here, as we are doing now, both for our own sake (making sure our understanding is correct) and for the sake of the other posters (some of whom, for example, apparently were not aware that ANY material information, regardless of whether it is a publication or not, must be cited).

    Second, I never try to get claims for my clients that I know are unpatentable. However, if I know that claims drafted by a prior attorney or by a client are unpatentable, I must teach the client enough about patent law in order to convince him/her of the need for amendment. That also takes knowledge of the particular details of patent law that we are discussing here.

  19. “Everyone (except examiner#6k)- Rule 56 requires the disclosure to the PTO of ANY material information, not just public information, and not just printed information. ”

    Oh really! I sure hope are are sending your inventors entire notebooks to the Office along with any napkins they worte on at lunch. Also, please make sure you tape your inventors statements and provide those as well, just to be sure.

    Yikes – the disclosure rule needs to die.

    Finally – why in the world are we allowing things that are not searchable and are not known or avialable to most people on the planet as disclosed prior art? 50 people actually read this guys poster, and now it has to be submitted? Submitting the Abstract makes sense, it is searchable, but the poster? Come on….

  20. Not me, I believe only 102(f) refers to derivation. 102(g)(2) art is “secret” prior art that need not actually have been publically disclosed, provided it was not being actively suppressed (e.g., for the purpose of delaying a patent filing and extending the patent term thereby).

  21. “102(g)(2) art can be used, but keep in mind that 102(g)(2) art includes only “inventions.” This means that it must be reduced to practice (either actually, or constructively, by claiming it in a patent application). Thus, an UNDISPLAYED poster (or detailed article, for that matter), is quite likely not a reduction to practice, even if it is enabling.”

    I believe in the case of derivation (102(f) and (g)), which would be the case here, then only conception by another and an enabling communication to the applicant are required. Reduction to practice by the actual inventor are not required. Anyone know the case that says this? I think its Gambro Lundia v. Baxter.

  22. I think it’s pretty well established that 102(g) art may be used in a 103 rejection. However, for 102(g)(1) to apply, you must have an actual interference, in which case some claims must be identical. 102(g)(2) art can be used, but keep in mind that 102(g)(2) art includes only “inventions.” This means that it must be reduced to practice (either actually, or constructively, by claiming it in a patent application). Thus, an UNDISPLAYED poster (or detailed article, for that matter), is quite likely not a reduction to practice, even if it is enabling.

    I think your point is that the poster could provide evidence of actual reduction to practice. That’s probably so, but in the prosecution context, neither the applicant nor the examiner are likely to be able to go any further than the applicant’s notes. Thus, absent an actual interference, there is unlikely to be a proper 103/102(g)(2) based on a poster that merely suggests a prior reduction to practice…

  23. “What is “‘prior art’ per se”? The term “prior art” is not in the statute. So, let’s not confuse prior art with printed publications. ”

    Point taken, Leopold. I attempted to clarify my question as I was coming around the other side of the barn …

  24. ” I was being lazy by using “short-hand.” ”

    Heh, well I just re-read my own comment and I notice that I was being lazy, too. I meant to ask: “if the poster failed to describe the invention, could the earlier **compositions** (plainly obtained prior to the preparation of the poster) nevertheless be used as 102(g) art for arguing obviousness under 103(a)?” For instance, what if the notes in this case were not so detailed but sufficed to inspire the defendants to investigate and produce evidence of the earlier “invention (of something similar) by another”?

  25. “Under 102(g), would the poster be ‘prior art’ per se or would it be more accurate to characterize it as “evidence of prior invention by another”? i.e., if the poster failed to describe the invention but described something similar, could the poster be used as prior art for 103 purposes?”

    What is “‘prior art’ per se”? The term “prior art” is not in the statute. So, let’s not confuse prior art with printed publications. Printed publications are just one way of demonstrating what was in the prior art. Use or knowledge of an invention by others prior to the invention are also “prior art”, regardless of whether there is a publication involved. Hence the “or” in section 102(a).

    And yes, of course the poster could be used as prior art for 103 purposes, provided that it could be established what was on the poster. An inventor’s notes describing the poster would be great evidence for that purpose, and thus clearly material.

    The takeaway lesson is that it’s never a good idea to withhold stuff that might be material. If the patent is important enough, that stuff will be found.

  26. “But it begs the question: would it be inequitable conduct for an applicant to fail to disclose notes taken about a poster that disclosed a composition or method that was SIMILAR but not identical to the claimed invention?”

    Under the right set of facts, yes it could be. In fact, aren’t these the facts of the very case we are discussing? The poster was not identical to the claims, just similar to them.

    I always err on the side of disclosure. If it could be argued that a prima facie case of obviousness could be established on the basis of the information/publication at issue, then I submit it. Obviousness is such a grey area that I feel it’s safer to submit it and then overcome the rejection on substantive grounds, if a rejection is made.

    With the proposed IDS rules, though, I think I will be sweating bullets about how to decide on what should be submitted.

  27. From the decision:

    *****In Bayer’s reply brief, Bayer argues FOR THE FIRST TIME(!!!!) that even if its other arguments fail the Mariani notes lack materiality because they would have been “merely cumulative” in light of the prior art reference of a Gene article by Dr. Adang which “disclosed toxic genes encoding Bt proteins of about 67-68 kd.”We do not consider this argument as it has been waived.*****

    My emphasis. This is what happens when defendants fail to throw in the kitchen sink. Frankly, I find the omission of that argument shocking.

  28. MM -
    “Under 102(g), would the poster be “prior art” per se or would it be more accurate to characterize it as “evidence of prior invention by another”? i.e., if the poster failed to describe the invention but described something similar, could the poster be used as prior art for 103 purposes?”

    Yes, that is the more accurate way to characterize it. I was being lazy by using “short-hand.”

  29. “That’s why the poster potentially qualifies as prior art under 102(a), (f) and (g).”

    Under 102(g), would the poster be “prior art” per se or would it be more accurate to characterize it as “evidence of prior invention by another”? i.e., if the poster failed to describe the invention but described something similar, could the poster be used as prior art for 103 purposes? I don’t recall anyone ever successfully pulling that off (at least not on appeal to the CAFC).

    But it begs the question: would it be inequitable conduct for an applicant to fail to disclose notes taken about a poster that disclosed a composition or method that was SIMILAR but not identical to the claimed invention?

    Talk about a slippery slope!

    That said, it’s difficult to argue with the holding here. Is one of the takeaway lessons here to destroy one’s notes after such meetings and drink enough afterwards to “forget” about the details of what was observed?

  30. Phil-You have the right idea about inventorship. That’s why the poster potentially qualifies as prior art under 102(a), (f) and (g).

    Everyone (except examiner#6k)- Rule 56 requires the disclosure to the PTO of ANY material information, not just public information, and not just printed information.

    Material information includes private information obtained by the inventor from another person; it includes collaborations with others that might lead to questions of inventorship (Perseptive Biosystems (Fed Cir 2000)); it includes Office Actions in related applications, even if they are not publicly available (i.e., they are unpublished applications) (Dayco); it includes many types of unpublished, nonpublic information.

    Although the unpublished information is not listed on a PTO-1449 or PTO/SB/08, nevertheless, it should be disclosed (for example in a pleading).

    I have disclosed that certain claims were invented by inventors at company A before the invention of certain other claims by a group of collaborating inventors from companies A and B.

    I have even provided a transcript of a seminar given by an inventor that was given under a confidentiality agreement more than a year prior to the filing date of the application in issue, in case the PTO were to question whether the seminar was a publication or not.

  31. I still am confused on the real issues. I think what was going on was that the patent claims (as written) meant that Barnes was the actual inventor. Barnes, as you recall, was the one who created the Barnes Poster. Bayer’s employee took notes from Barnes and Bayer used them in the patent application. I don’t think the Barnes Poster was prior art and the notes themselves were not prior art (not “published”). I think the court was pissed that it appeared that Bayer took credit for and was trying to make money off Barnes’ contribution to the invention (Barnes’ contribution to elements in the claims). My guess is that the “Barnes is at least a joint inventor” route would have been confusing, even if it was the most likely “real issue.” In the end, Barnes wasn’t gonna see a dime and the court probably felt that Bayer shouldn’t either. It seems hard to take a general lesson from this case.

  32. me wrote, “The notes and the poster were not “published” under 102 and were not public, thus there was no need to submit them.”

    The poster was accesible to those attending the conference (presumably without any duty of confidentiality) and could arguably be considered both public and a publication. The notes were relevant to the contents of that poster and thus contained potentially material information.

    Is it an open-and-shut case that deserves summary judgment of inequitable conduct? Maybe not. But the opposite surely isn’t true either. And, the takeway message is, if it’s a close case, you withhold at your peril. (Although the problem probably was that the prosecutor lived in the same black-and-white world “me” lives in and thus thought there was no duty whatsoever.)

  33. Disagree. It is a very slippery slope to allow any transitory “publication” to become prior art. Agreed that a poster probably should be (but does this mean lots of patent are unenforceable?), but a napkin on the door? Come on. What – the statements the guy made in the bar are prior art too? We have rules so all parties have certainty, lets follow them.

  34. Hellllooooo out there, ANYTHING that any information someone found being publicly accessible IS prior art. Doesn’t matter if it was a napkin nailed to a door of a pub. Good lord people, stop thinking with your rears. If you saw someone else with it, you cannot claim it, nor an obvious varient of it. Don’t even try. We’ll all be a lot happier for your resisting temptation.

    At least one judge is standing up for this a bit and using his broadest powers to do so. Now if all the rest would gettyup!

    Also, apparently they eventually got what they deserved, some small piece of the pie. Although for them their small piece of pie came at a huge price. Just take that from the beginning next time and save us all the trouble ffs, not to mention yourself some money.

  35. me,

    It is potentially prior “art” under 102(a),(f) and/or (g), or at least it’s information that an examiner might consider relevant to patentability.

  36. There is recent case law suggesting that a poster made available at a conference can constitute a printed publication. See In re Klopfenstein.

  37. The poster publication as prior art is a slippery slope, but I think the message here is you may not have to tell the Examiner what you think the poster means, but you can’t make (mis)representations about the status of prior knowledge – they could have simply overcome the Barnes reference by caving to the Bt toxin fragment they were using (which was not the same as the one used by Barnes) and saying the art did not teach that fragment. This is what happened eventually anyway.

  38. The notes and the poster were not “published” under 102 and were not public, thus there was no need to submit them. This seems a strange outcome.

  39. Well, this will make good hay for the patent litigators. Generally, all I have submitted to the USPTO in similar situations was the abstract given out by the poster presenter, not my clients’ notes. As noted by Singlesa, I considered that the abstract presented the best way to separate the poster’s disclosure from my clients’ interpretation of the disclosure. I wonder if there will now be a slew of reexamination proceedings based on the holding of this case.

  40. Singelesa-

    I would think that you could redact items from the notes that had nothing to do with what display board taught, although if the redacted items went to something independently material (e.g., level of skill etc.) applicant would have had a duty to submit a 132 for the examiner’s consideration.

  41. Here’s what the court wrote on Page 17: “We hold that the Mariani notes are material because they directly contradict arguments Bayer made to the PTO in support of patentability. We do not suggest that all internal documents of potential relevance must be submitted to the PTO as a matter of course.”

    My read on the situation is that 1. Barnes Poster was prior art. 2. Bayer knew about the Barnes Poster and should have IDSed the Barnes Poster to the USPTO. 3. Obviously, the Barnes Poster wasn’t available to Bayer to disclose to the USPTO. 4. The Mariani notes were the next best evidence of the Barnes Poster and should have been IDSed to the USPTO.

    The trouble I’m having is that the Mariani notes contained a mixture of her private interpretation of the Barnes Poster and a reproduction of the elements of the Barnes Poster. However, Bayer had a duty to disclose the Barnes Poster to the USPTO and did not. The next question is, “What did the Barnes Poster say.” It was likely that the Barnes Poster was long gone and Barnes probably didn’t remember. That left the Mariani notes as the next best written evidence of the Barnes Poster information.

  42. Dear Twista:

    I think you have it backwards – Monsanto asked the court for attorneys’ fees. What the decision means is that Bayer should have included a representation in the Nonliability Agreement that Monsanto would not ask for attorneys’ fees wih regard to any of the three patents no longer in suit. Of course, under the Nilsson decision the court could still reach the issue based on the concept of “infectious unenforceability,” but that would not have been such a clear-cut issue.

  43. So what you are saying is that if Bayer’s lawyers didn’t try to get Monsanto to pay for the legal fees of Bayer’s lawyers, then Bayer (the company client) would be sitting pretty with some still valid patents? What are the odds that Bayer’s lawyers told their client, ‘Well, we’re gonna try to get Monsanto to pay for our legal fees. This means that your patents are still before the court and the court can hold your patents unenforceable.’ In reality, I don’t think any lawyer would have thought that a clearly resolved legal matter could be overturned when the only thing left to decide was legal fees.

  44. Depends on whether the info in the notes is non-cumulative to the poster info/abstract, whether it constitutes a printed publication that is accessible, and whether it is material to patentability.

  45. DJF said “had the actual poster itself been presented, it might not have been necessary for Bayer to present the notes” Excellent issue/question. What do the other posters think — would it have been necessary?

  46. Dennis, thanks for this summary, but on reading the case I think your synopsis is slightly off: it wasn’t the Barnes *poster* that was presented by Bayer to the PTO, it was an *abstract* of the poster. The district court had determined that the poster contained more information than the abstract thereof (page 9 of the CAFC’s decision). Also, as I understand it, Barnes was not a Bayer scientist (if he was, why would another Bayer scientist need to take notes on the poster?). Hence the poster was prior art. Since – apparently – the poster itself was not available to Bayer to submit to the PTO, the extensive notes taken by the Bayer employee served as a better proxy for the content of the poster than the abstract that Bayer actually submitted. Hence not disclosing those notes to the PTO amounted to inequitable conduct, resulting in the unenforceability ruling.

    It seems to me that, had the actual poster itself been presented, it might not have been necessary for Bayer to present the notes. However, if the notes reflected the notetaker’s impressions of what the poster taught, that might have been relevant to the question of obviousness, and thus the notes still might have been material to patentability.

  47. Scientists Estimate That Pesticides are Reducing Crop Yields by ONE-THIRD Through Impaired Nitrogen Fixation – July 2007
    Drawing on their recent work and other published studies, the team projected that pesticides and other contaminants are reducing plant yield by one-third as a result of impaired SNF. This remarkable conclusion suggests one mechanism, or explanation of the yield-enhancing benefits of well-managed, long-term organic farming systems. link to organic-center.org
    Furthermore this is all about monopoly not science :

    On 17th December 2007 Monsanto was found guilty of contempt of the South African Advertising Authority (ASA) for publishing false claims about the safety of GM foods.

    In January,2007, Monsanto was fined 15,000 euros (US$19,000 ) in a French court for misleading the public about the environmental impact of herbicide Roundup.

    A former chairman of Monsanto Agriculture France was found guilty of false advertising for presenting Roundup as biodegradable and claiming that it left the soil clean after use. Monsanto’s French distributor Scotts France was also fined 15,000 euros.

    In 2005 Monsanto was caught smuggling South African produced GM Bollgard cotton seed into Indonesia disguised as rice. Monsanto was fined for bribing Indonesian officials.

    In 2006 Monsanto suppressed evidence of serious damage to the liver and kidneys of rats in their MON 863 GM maize trials until ordered to release this evidence by a German Court.

    In June, 2007, a second peer-reviewed case involving another variation of Monsanto’s GM maize, namely, NK 603, has been shown by studies to be potentially toxic to humans. NK 603 has been approved for food, feed, processing, and propagation in Europe and the Philippines The new research, carried out by the French scientific research institute CRIGEN, involves biotech firm Monsanto’s NK 603 GMO corn (marketed commercially under the name Round-up Ready).

    Rats that were fed GM maize showed significant differences in measurements, as well as significant weight differences compared to those fed with normal maize. Almost 70 statistically significant differences were observed and reported – 12 for hematology parameters, 18 for clinical chemistry parameters, nine for urine chemistry parameters, six for the organ weights (brain, heart, liver), 14 for body weights and body weight changes, and eight for food consumption. toxicity, The most alarming was the diminished brain size. Scientists warned that diminished brain size sent out a urgent danger warning for growing children fed `GM food.

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