Self-Replicating Inventions: Supreme Court asks for Government’s Views in Monsanto Patent Exhaustion Case

By Dennis Crouch

Bowman v. Monsanto (Supreme Court Docket No. 11-796, 2012)

In 2011, the Federal Circuit again affirmed that Monsanto’s genetically modified seeds patents can be used to stop farmers from saving and replanting the GM seeds. The farmer, Vernon Bowman, then petitioned the Supreme Court asking for a writ of certiorari – presenting the following question:

Patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale. In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose – namely, for planting. The question presented is:

Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?

In its brief-in-opposition, Monsanto reformulated the question as follows:

Whether the Federal Circuit correctly ruled that Monsanto’s patent rights in biotechnology related to genetically modified plants (here, patented technologies that make soybeans resistant to glyphosate-based herbicides) are independently applicable to each generation of soybeans embodying the invention, such that a grower who, without authorization from Monsanto, creates a new generation of genetically modified soybeans infringes Monsanto’s patents.

CVSG: Now, the Supreme Court has invited the Solicitor General to file briefs expressing the views of the United States in the case. This is a significant step toward grant because it shows some interest in the case. Typically a call for the views of the Solicitor General (CVSG) requires the vote of at least four justices. However, those votes appear to be easier to obtain than a vote to grant certiorari or a vote to reverse the lower court. A study of 30,000 petitions reported that a petition on the paid docket is four times more likely to be granted once the Court calls for a response. Thompson and Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 George Mason L. Rev. 237 (2009). In his study of patent cases, Professor Duffy found that the SG’s opinion is extremely important in predicting whether the Supreme Court decides to hear a case on the merits. John F. Duffy, The Federal Circuit in the Shadow of the Solicitor General, 78 Geo. Wash. L. Rev. 518 (2010).

DOJ – USPTO – FTC – ETC.: The USPTO would almost certainly agree with the Federal Circuit’s opinion and recommend against a grant of certiorari. Of course, the Supreme Court is not asking the opinion of Raymond Chen (USPTO Solicitor General), but rather the opinion of Solicitor General of the United States (acting on behalf of the US). In the power struggle, the USPTO is only one voice and may well lose-out here to other interests (as it has in other recent cases). In 2005, the SG (then Paul Clement) filed a brief in the parallel case of McFarling v. Monsanto recommending that the petition be denied. The McFarling petition did not focus on exhaustion. However, in a footnote the SG brief noted that “whether (and, if so, to what extent) the patent-exhaustion doctrine applies to restrictions on the use of a materially identical patented product that was produced by the patented product sold by the patentee” is “novel.”

Mark Walters of Frommer Lawrence & Haug is lead counsel for Bowman. Seth Waxman is counsel of record for Monsanto.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

265 thoughts on “Self-Replicating Inventions: Supreme Court asks for Government’s Views in Monsanto Patent Exhaustion Case

  1. anon, I have agreed here with Bad Seed, and in the past have agreed with Malcolm, where they have convinced me of their positions.   I try always to give credit where credit is due (here and at work), and will acknowledge that they have convinced me.

    I wish I knew who Bad Seed was because he, like Malcolm, is now on my A list.  I pay attention to what they say because when they are passionate about an issue, they generally are right.

    Regarding you and me, we seem to dance around issues rather than engage.  Perhaps some of that is my fault.  But, you will note that both Bad Seed and Malcolm clearly and simply stated their positions, and if challenged, they provided a longer explanation.  I would hope you adopt the same approach with me.  

  2. Kudos Ned.

    Often you are maligned – and rightfully so – for sticking to your arguments beyond any sense of reason.

    It was refreshing to read this thread and see you actually accept someone else’s reasoning.

    I have hope, then, of someday perhaps having you return to my three questions on software and have you embrace them with the same “open” state of mind.

  3. analysis, I have been thinking on this a bit. This is what I now think is right:

    1) Planting a seed is using the seed.

    2) The plant produced from the seed is produced by natural laws and phenomena: only in a vague, God-created-the-universe-so-he-created-you-and-me sort of way, is the planter of the seed a maker of the plant. In general, natural law makes the plant from the seed, not man.

    3) the seeds produced by a patented plant are not made by man; they too are products of nature.

    While the patents laws may protect artificially made bioorganisms, they certainly do not protect natural phenomena. Nothing in Chakrabarty suggested anything to the contrary; and Prometheus only reinforces the concept.

    One can only concluded that the USPTO position to allow the patenting of plants and animals that are asexually reproduced is ultra vires. They have allowed patents on the products of nature.

  4. I would posit then that the troika of Univis, Quanta, and Prometheus indicate a losing position for Monsanto.

    Would you agree?

  5. I understand the widget reference. I also understand how Try Again turned that very reference to be more on point to the instant case by morphing your example to include both the inventive aspect and the doctrine of exhasution as that doctrine relates to the immediate case and its facts.

    I await your answer to Try Again’s question because it is most definitely not a strawman as I understand that term. The question incorporates the praise you have given to Bad Seed in a larger context of an invention with self-replication capabilities.

    It is very much on point to how I think the Exhaustion Doctrine will be applied.

  6. analysis, I will fully consider your views here.  I will not respond right now, as I will think about them for a bit first.
     
    However, I applaud you for the high quality of your post.  Thanks.

  7. analysis, I agree with the Fordham article, and so does the Supreme Court.  There is no other explanation for the Quanta decision where exhaustion occurs when less than the whole invention is sold, but the part sold is, in essence, the embodiment or heart of the invention.

  8. I remember Ping. Crude, but effective. I do not remember him clashing with MaxDrei, and I do remember him idolizing IANAE.

    However, given the group of posters, I am not surprised that someone finding fault with one would find fault with the others. In fact, you have grouped the people together on more than one occasion.

    Be that as it may, I see no reason to make this thread one of sockpuppets. I think that BigGuy is quite incorrect in his view that nothing of merit has been unearthed on this thread. To me, it has been one of the more enlightening threads of late.

  9. analysis, I think you are referring to Aro II.  I am referring to Aro I.
     
    However, I was struck by Harlan's dissent.  In a nutshell, what is reconstruction depends on the facts..
     
    "
    For more than a hundred years it has been the law that the owner of a device covered by a combination patent can, without infringing, keep the device in good working order by replacing, either himself or through any source he wishes, unpatented parts, but that he may not, without rendering himself liable for infringement, reconstruct the device itself, whether because of its deterioration or for any other reason, and even though all of the component parts of the device are themselves unpatented. Wilson v. Simpson, 9 How. 109; Cotton-Tie Co. v. Simmons, 106 U. S. 89; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U. S. 425; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325; Heyer v. Duplicator Mfg. Co., 263 U. S. 100. The underlying rationale of the rule is of course that the owner's license to use the device carries with it an implied license to keep it fit for the use for which it was intended, but not to duplicate the invention itself. Correlatively, one who knowingly participates in an impermissible reconstruction of a patented combination is guilty of contributory infringement. "Direct" and "contributory" infringements are now codified in § 271 of the Patent Act of 1952. 35 U. S. C. § 271.[1]
    370*370 In this case the District Court and the Court of Appeals upon full consideration have concurred in finding that Aro's replacement-supplying of the fabric portion of respondent's convertible automobile tops contributorily infringed the latter's territorial rights under the valid Mackie-Duluk combination patent, in that such activity constituted a deliberate participation on Aro's part in a forbidden reconstruction of the patented combination. In reversing, the Court holds that there can be no direct infringement (and hence, of course, no contributory infringement) of a combination patent by replacement of any of the components of the patented entity unless (1) such component is itself separately patented or (2) the entire entity is rebuilt at one time. Since the fabric cover component of the Mackie-Duluk top was not itself separately patented, and since it constituted but one part of the patented combination, the Court concludes that Aro's supplying of such covers for replacement on cars equipped with respondent's tops did not as a matter of law constitute contributory infringement.[2]
    371*371 My Brother BRENNAN'S opinion, while disagreeing with that conclusion, would reverse because on its view of the record, untrammeled by the contrary findings and conclusions of the two lower courts, it is concluded that what 372*372 here took place constituted "repair" and not "reconstruction" of the Mackie-Duluk tops.
    I am unable to subscribe to either of these views.

    I.

    I believe that the narrow concept of what constitutes impermissible reconstruction, reflected in the opinion of the Court, departs from established principles—principles which, it will be shown, were approved by Congress when it enacted § 271 of the new Patent Act, over objections of the Department of Justice altogether comparable to the position which it now advances as amicus in the present case.
    The all-important thing is to determine from the past decisions of this Court what the proper test of "reconstruction" is, for I agree that 35 U. S. C. § 271 (c) limits contributory infringement to that which would be direct infringement, and that § 271 (a), dealing with direct infringement, leaves intact the pre-existing case law. The cases cited above amply demonstrate that there is no single yardstick for determining whether particular substitutions of new for original unpatented parts of a patented combination amount to permissible repair or forbidden reconstruction. The matter is to be resolved "on principles of common sense applied to the specific facts" of a given case, Heyer, supra, at 102. The single simple rule of "reconstruction" which the Court finds in those cases can, in my view, only be divined at the expense of reconstructing the decisions themselves.

  10. As I read Bad Seed’s position, it is not as you state “Thus planting the seed is using the seed, NOT making a plant” but rather that the use is planting AND making. It is not an EITHER OR, but a BOTH.

    This is a subtle, but important point because the Coourt’s application of the Exhaustion Doctrine on the facts of this case will in my opinion come down on the fact that these two facets are joined together. If one looks at the aspects of the inventive concept, that inventive concept is only realized in the use of planting, and the fact that a natural law is involved from the fact of planting to the action of making will, in the light provided from the fires of Prometheus, show that the exhaustion of one necessitates the exhaustion of the other. In this sense, the Court’s view in Univis Lens 316 U.S. 241 (1942) is most on point. The capture of the patent’s essential features in the first sale is not doubted. This has been stated by several posters on this thread, and I have seen no counter argument to dissuade me.

  11. analysis, "and then plants or sells the 'purified' patented seed."  The act of purification itself is not infringement.  This is the point that seems to evade.
     
    You do not seem to see that the planting or sale of a pure crop of patented seed actually harms the patent holder.  The other does not.
     
    I like the analogy to "fair use" in copyright law on this point.
     

     

  12. I belive that the new fact htat you are attempting to interject into the Post case would raise the very question the case takes for granted as answered: that possession is clear.

    There is no basis to interject this new fact, neither in the current discussion nor in the Post case.

    This appears to be an attempt at fanning the embers to produce more smoke.

  13. The portion of the case wherein the Court discusses the contract by Ford. See, for example p 377: “The patent owner’s attempt, in the agreement with Ford, to reserve the right to license future replacement sales was invalid, since he cannot, in granting the right to use patented articles, impose conditions as to unpatented replacement parts to be used with those articles.”

    As a bonus to the discussion, I have noted your submissionof several articles and wanted to answer in kind. Given the number of Supreme Court case over the last few years, and especially the notion of invnetive aspect emphasized in Prometheus, I thought you might enjoy the article by Bernard Choa located at:

    link to ir.lawnet.fordham.edu

  14. As mentioned above, the widget example was introduced by you. I read the Country Lawyer post(not Country Farmer as I posted in error) to address the desire by you to use the terminology of “purify.” I noted that you had been asked twice to refrain from using such a loaded term, but declined.

    You indicate that you never suggested that someone culling seeds would be guilty of infringement.

    This clearly is not true. For example, see your posts at least at:
    4/9 at 11:35 AM and at 5:57 PM,
    4/12 at 7:17 AM and at 4:35 PM, and
    4/13 at 11:38 AM, at 11:45 AM, and at 6:44 PM.

    I cannot divine that you did not realize the extent of the position you have clearly taken. Someone who buys and plants a mixed bag is not an infringer while someone who buys but processes a mixed bag to achieve a separation of the seeds into two different types is guilty of infringement.

    I thought the use of gumballs in the example was a clever way to distinguish the two varieties and does not “move the goalposts” from the position you had taken. It is a device that chieves clarity and sharp contrast.

    My bet is still on Country Lawyer.

  15. Analysis, the Aro case did not contain an unrestricted sale of a convertible car?  This is news to me.  Could you please reference the portion of the case that made this point?

  16. Analysis, but my widget example had nothing to do at all with my suggestion that a farmer who invented some process to purify the crop of a field planted with undifferentiated commodity seed into a crop consisting substantially only of the patented seed might be considered an infringer by selling or planting that substantially "purified" seed.

    The widget example was in reference to the fact that one buying a widget is not granted a license to manufacture widgets, or even to remanufacture the widget he did buy.

  17. The contracts being discussed and compared are from each of the Court cases. The contract in Aro Mfg. must be applied in light of the facts of that case. It is inapposite at best to draw a conclusion counter to the facts presented and ineffective at most to expect that conclusion to hold up under scrutiny.

    As you indicate, this case includes an unrestricted sale. The Aro case did not. It is an important difference that should not be, as they say, lost in the weeds.

  18. Analysis, so your point seems to be that control of a wild animal is sufficient for one to have a property right in that animal.  This suggests that if another harms the animal in question, or takes away, that the first person might sue for damages.  But what if the second person has no notice whatsoever that the animal in question is under your control?

  19. The widget example is yours Ned Heller. You introduced it Reply Apr 13, 2012 at 06:21 PM

    Try Again answered your post and posted a question which you have evaded answering.

    I am only pointing out that you have evaded something you proposed. I would like to see you answer the question.

  20. analysis, your widget example suggested that purification of existing seed by separation of two apparently identical seed varieties in a basket was an act of infringement by itself.  I never suggested it was.
     
    But, from a botany point of view, how does one achieve a basket consisting of only the seed of the patented plant from a crop of a field of plants that sexually reproduce and therefore do not necessarily have the genes of its parent?

    Second, because plants sexually reproduce, how can one prevent the "patented" gene of interest from migrating from a field having only the patented plant to an adjacent field that consists only of unpatented plants?  Isn't it just a matter of time that the patented gene of interest spread by operation of the laws of nature throughout the entire world?
     

     

  21. BigGuy, I know.  They do this with me, Max, Malcolm, IANAE and 6, among others.  Ping used to do the same thing to all of us and we all agreed to simply not respond to him.  He disappeared, but we think he may still be here using the annoying descriptive monikers.  All of us have asked Dennis to do something about the pest as he or she really degrades Patently O.

  22. Big Guy, to a great extent, I agree with you that many sock puppets are nothing but trolls who do exactly as you say they do.  Still, there are some who perhaps are genuine posters actually try to make genuine arguments  and who do make telling points.  This thread is full of such posts.
     
    The best point made by anyone in this thread is made by Bad Seed.  He observed that the primary utility of a seed is to be planted.  Thus planting the seed is using the seed, not making a plant.  (The plant is made by nature using a natural process.)  Therefor, even under the Federal Circuits own reasoning wherein use rights are exhausted, the unrestricted sale of seed exhausts the patentee's use rights in the seed, thereby allowing it to be planted by right.   

  23. who do nothing but contradict you, regardless of what you say

    This is not true. Ned has been the most vocal, but those raising points to counter what Ned has said have not been contrary regardless. Rather, the counter points have been clear, lucid and poignant.

    If you want to illuminate the topic, I recommend that instead of posting a negative comment about someone else making comments that you get involved with a meaningful comment yourself.

  24. took my post out of context for a reason

    I see no reason to believe this is out of context. You used a conjunctive to identify two items that you sate must be met and the poster showed the case did not require both.

    This is a clear and on point post refuting your offered logic.

    Why the smokescreen reply?

  25. I see no movement of goalposts.

    I see destruction of “purify” and a conflation of patent topics.

    My bet’s on Country Farmer.

  26. it’s s contract question – not an absolute. that’s why you need to look at the facts of each case.

  27. You did not answer the question:

    Does the use of the widget necessitate that it creates more of itself during normal use in order to fulfill the intent of the patented item?

  28. Ned, the only thing that is “self-evident” from this thread is that you really need to get a more fulfilling job and give these boards a rest. 90% of this thread consists of you “discussing” this topic with a half-dozen sockpuppets who do nothing but contradict you, regardless of what you say. Perhaps you’re entertaining yourself, but you and your sockpuppet interlocutors are certainly not illuminating the topic.

    Perhaps a non-IP-related hobby is in order?

  29. I think it is self-evident from this thread that there are significant, fundamental problems with patenting sexually reproducible plants and animals. This leads me to believe that sexually reproduced plants and animals must be classified as things OF nature regardless that they may be genetically altered products of man. As we know from virtually all Supreme Court cases discussing the exceptions to patentable subject matter since 1852, one cannot patent phenomena of nature. Chakrabarty made it clear that plants and animals were phenomena of nature. Chakrabarty did not exclude the patenting of the bioorganisms in that case simply because they were alive. However the question of whether the bioorganisms, even though they were made by man, still remained phenomena of nature or things of nature because they sexually reproduced was not a question they considered. It is time the Supreme Court considered this question.

  30. Clearly, Aro is pertinent because one has no right to reconstruct, i.e., remake a patented product.  Clearly, the sale of an item does not exhaust the right to make that item.

  31. I peek in this thread to find the majority of commenters wiping the floor with none other than Ned Heller…..

    AGAIN!!

    It’s Ned Heller hunting season.

  32. Wow!

    I peek in this thread to find the majority of commenters wiping the floor with none other than Ned Heller…..

    AGAIN!!

    What is it with you Ned and these merciless beat downs?

    You a glutton for punishment or something?

    Looks like it’s time for you to accuse everyone of being me, AI, and cut and run.

  33. Ned Heller says:

    If a farmer “purifies” the seed stock so that it consists is substantially of only the patented seed, and then plants it or sells it, that farmer is an infringer.

    I am not so sure of your position wrt to commodity seed, which is an uncertain mixture of patented and unpatented seed.

    I would love to see you in court with that argument. First I would ask you for a proper citation to the exact law that gives you support for your legal assertion. Then after you hem and haw and make up some bull answer, I would dispose of that citation, turn to the judge and say:

    Your Honor, I go to the store and, without reservations or limitations of any kind, buy a bag full of mixed widgets and gumballs. I come home and in the privacy of my own farm, carefully lay out a sanitary blanket, empty the bag onto the blanket in my field and hand pick out, cull, “purify” the widgets into one pile and the gumballs into another. I then put the widgets into one bag (and the gumballs into another that I gift wrap for you since I know your Honor is partial to gumballs), walk over to my neighbor and sell him the bag of widgets. The very same widgets I bought less than an hour before with absolutely no reservations or limitations.

    Your Honor, Ned Heller wants to make this an act of infringement. He says this “purification” violates the patent right of making the widgets even though no new widgets were actually made. He has supported this accusation with no citation of law, and no hope of anything except harassing me and wasting your Honor’s time.

    Ned Heller, I think my chances of seeing you thrown out on your ear and me awarded special damages are pretty darn good.

  34. Three times you have referenced Aro Mfg. as if it is some magic bullet to this discussion.

    Please explain why the repair/replacment case has any bearing on the facts of this case.

    [grabs softdrink]

  35. I almost hxte to ask, but Ned, what possible insight does Aro Mfg supply given the facts of that case?

    I hope you do you realize that that case deals with the repear/replace question and has contractual constraints that simply do not apply to the case at hand wherein Monsanto relinquished all contractual holds with its allowance for naked sales.

    Self-propagation is simply not at issue in that case.

    But please, provide the citation and your impression of the holding of that case and how it affects the instant case.

    [grabs popcorn]

  36. Ned,

    First, I changed none of the facts, as I merely listed options that make a better fit than your draconian NO SALES doomsday view (which btw, would fall to the same type of “change the facts” that you now accuse me of). You are the one who made up this “not allowed by Monsanto fact out of thin air (and btw, accuse me of having that as a necessary premise). All I did was make the situation more realistic without your false alarmist view.

    Second, You did not answer my question. I asked why you think the Monsanto people did not push for control on the progeny seed.

    Assume for the moment that there is a reason not to. What would that reason be?

  37. part and parcel with your attitude that everything you say is the law and that you are always right

    Actually, I am always right. I make sure of that before I post.

    As for what I say being the law, that’s a bit too egotistical, even if what I say is the law, it is not the law because I say it. I can see where you might get confused, as I am never wrong and the correlation simply boggles your mind, but let me set you straight, my words do not create law (at least on this forum).

    But please, I enjoy your attempts at humor. Try again.

  38. You have ignored what You Are What You Eat said at 1:28 PM.

    He gave a perfectly reasonable explanation as to why the phrase is not apt at all in a patent discussion.

    Aren’t you all about trying to engage in a discussion? Why then do you purposefully drive the wrong way down one way streets? Do you enjoy making inane arguments? Or maybe you enjoy the attention your inane arguments generates. Be honest, you want me to care about you. You are screaming for attention and will do and say anything to get it.

    But the least you can do is try to apply a little legal skill and thought in your posts and not make it so easy to make fun of you.

    Try again.

  39. Try, I see.  Part of your psychological makeup it seems.  You need to continue to prove to me, and to others it seems, that you are always right.

    Now, let me look that up in my handbook of mental disorders….

  40. Don’t mistake making fun of you with caring for you.

    Posting about what you think is fun because it is an easy way for me to maintain my record of always being right.

    Why do you think I always invite you to try again?

    Try again.

  41. Now you are changing the facts.

    Of course Monsanto can do all that and it should if it wants to continue to control the seed.

    One wonders why the good patent attorneys inside Monsanto didn't figure this out long ago.

  42. Try, of course not.  No one cares what I think.  So please stop posting about what I think as if it made any difference to anyone.  As you say, no one cares.

  43. Since that cannot be allowed by Monsanto, your rule would result Monsanto having to prohibit seed sales to the grain elevators in the first place

    What passes for logic in your tortured mind Ned?

    I see several immendiate options all of which are far more likely than your draconian NO SALES doomsday view.

    1) Monsanto requires are reselling deals to incorporate the restrictive terms (including maintenance of separation in order to effect enforcement and not have the terms deemed illusory).

    2) Monsanto designs a gene that lasts only one generation.

    3) Monsanto charges more for the genetic item up front.

    Now in full view of how helpful I have been, your turn:

    Why does Monsanto readily admit that there is no control or explicit conditions on the resale of a harvest generating from the first generation seeds it sells?

    Keep in mind that the Monsanto people have some pretty astute lawyers. Why do you think that they did not push for control on the progeny seed?

    And why the H_xll do you think that naked sales somehow create a sleeping right in generations of product down the line? Where in law are you getting this?

  44. You can ASSume anything you want (and you do).

    Why does it matter to anyone? Your assumptions are most nearly always wrong and no one gives a flying leap what you think.

    Sorry to be harsh. I am only being honest.

    But please, try again.

  45. Does the use of the widget necessitate that it creates more of itself during normal use in order to fulfill the intent of the patented item?

    Hint: if the answer is yes, then your widget is also completely exhausted at sale.

    Try again.

  46. Occam only assumes that you would recognize what patent exhaustion means.

    Don’t blame him, for he is but a simple man.

    Try reading his post again – there is beauty in its simplicity.

    Try again.

  47. Try again, it is interesting that you assume that just because you say something  that it is established fact.  That comes part and parcel with your attitude that everything you say is the law and that you are always right and everyone else is always wrong.

    Try, may I politely suggest that you consult a shrink.  You are clearly in need of meds.

  48. If a farmer “purifies” the seed

    You said you would stop.

    ARRGGHHH.

    STOP.

    Those are terms of art and your use of those terms here is OFFENSIVE.

  49. The point is that you don’t even have to yell “This is my whale.”

    Read the Post case again.

    Try again.

  50. You got pounded to smithereens on the Chakrabarty/Nature thread.

    Do you really want more of that?

    Try again (but at least go back to that thread and do it).

  51. Assume that I patent the improved tuna with a special gene. I then throw my patented tuna into the ocean and wait a few years. During this time, the patented tuna’s patented gene are assumed among the entire population of tuna.

    Now I sue. Everyone fishing tuna in the world is now an infringer.

    Other than equitable defenses, is there anything at all wrong with this?

    Imagine some wiseacre even suggesting that one cannot patent nature?

    There seems a fundamental conflict between all natural phenomena cases prior to and subsequent to Chakrabarty, and Chakrabarty.

  52. ION, "Did the farmer buy the seed without restriction? It's a simple Yes and No question. Do you understand what "without restriction" means?"


    ION, what does "without restriction" mean?  

    When one buys a patented widget, does one receive the right to make further widgets from this widget?

  53. "I though Wild things were the property of whoever possesed them."  But only for so long as one continues to exercise control.  One can, after all, restore the wild thing to his natural habitat whereby one's ownership rights are abandoned.

  54. Possession, I assume you took my post out of context for a reason?

    Control + notice of a claim.  Both are required, from my understanding.  Simple notice without control is normally not sufficient.

    Take the case of two whalers pursuing the same whale.  Simply yelling, "That is my whale." is not sufficient.  One must also put at least one harpoon into the whale.

  55. IANAE:But in the case of a patented seed, or organism, who has the right to make, use and sell? The person who took the things from the wild, assumed control, etc., or the patent holder?The patent holder does, if anybody does.I don't know if you were aware of this, but patent rights are always asserted in things that the patentee does not own. That's the whole point. If it were a defense to patent infringement that the patentee did not own the infringing article, patents would be worthless. IANAE, I think we agree on this much:  If a farmer "purifies" the seed stock so that it consists is substantially of only the patented seed, and then plants it or sells it, that farmer is an infringer.

    I am not so sure of your position wrt to commodity seed, which is an uncertain mixture of patented and unpatented seed.

  56. Man, since you replied to my post to Bad Seed asking for him to confirm his position, a post to which he did not reply, my I assume that you speak for Bad Seed?

  57. Abra, your position is that if Monsanto permits the sale of the seed crop to a grain elevator, then Monsanto’s rights in that seed and all future crops are exhausted. Since that cannot be allowed by Monsanto, your rule would result Monsanto having to prohibit seed sales to the grain elevators in the first place.

  58. I do not agree that the buyer of that seed has been granted a license to continue to plant patented seed in perpetuity.

    Great, because no such license grant is needed for a fully exhausted item.

    (That’s why patent exhaustion here is the simple, correct, and simply correct answer).

  59. Bad Seed, what happens after the first crop is produced from the commodity seed is the real problem.

    Why is this a problem? The original “make” is gone (fully bought and paid for). The second “make” is OK per your logic (again fully bought and paid for). You want a third generation magic rabbit to jump out of your little black hat?

    Did the farmer buy the seed without restriction?

    It’s a simple Yes and No question.

    Do you understand what “without restriction” means?

    Take your time on this one.

  60. When we apply those phenomena to do things and make things

    I can think of no better example (and nothing more exciting than watching grass grow) than to plant something and say unto nature: apply it.

  61. Agriculture is not man’s doing? Bit of a reach.

    Hmmm, I wonder if I could get a patent on that…

  62. Wild things are the property of none.

    I though Wild things were the property of whoever possesed them.

  63. And how is that effectively different than what nature does?

    And make sure you keep Prometheus in mind with your answer.

    The fact that man also does what nature does does not generate a patent right.

    That is the essence of what you do not seem to understand.

    If you have an improved method of planting, great get yourself a patent for the improved method. The result of nature is off limits.

    See Univis Lens. ALL patent aspects are exhausted. Those that are not, as has been shown today per Prometheus, are mere natural law items that cannot be the subject of patent rights.

  64. Someone did not set IANAE’s alarm clock – the use in questionis tied to the aspects of the patent. It’s the only germane use under discussion.

  65. The patent holder does

    Until he does not.

    The first is obvious. And so is the second even if people choose to turn a blind eye to it.

  66. There is no other use for the seed (as related to the patent).

    Right, people are only planting these things because they love gardening.

    You’d have to wake up pretty oily in the morning to convince me there’s no other use for canola.

  67. provides adequate notice to others of one’s claim

    FAIL – read the Post case again. It was even with such notice (that the hunt was on) that possession alone ruled.

    And ruled completely. Even if the fox wasn’t killed and merely tamed.

  68. This case is nothing like Global-Tech and much more like Univis Lens.

    The making is inherent and is sold with the product. There is no other use for the seed (as related to the patent). Once that simple concept is understood, all secondary sales are meaningless (anyone wonder why Monsanto took their pecular stance on the secondary sales?)

    C’mon people, this really is not that difficult to figure out.

  69. That is the only logical position. Otherwise you have effectively granted a patent on the natural phenomena of a seed producing progeny.

    That is not man’s doing. That is pure nature.

    Agriculture is not man’s doing? Bit of a reach.

    Chemistry occurs in nature. So does gravity. So does light. When we apply those phenomena to do things and make things, that is man’s doing.

    Yes, seeds can grow by themselves. However, it is also possible (and quite common) for farmers to create the conditions whereby unnaturally large quantities of seeds of the same type all grow in neat little rows and produce high yields of the same type of seed. That would be man deliberately making more of a patented article.

  70. But in the case of a patented seed, or organism, who has the right to make, use and sell? The person who took the things from the wild, assumed control, etc., or the patent holder?

    The patent holder does, if anybody does.

    I don’t know if you were aware of this, but patent rights are always asserted in things that the patentee does not own. That’s the whole point. If it were a defense to patent infringement that the patentee did not own the infringing article, patents would be worthless. Similarly, if the patentee asserted a property right in the infringing article, he would be suing himself.

    This case is exactly like Global-Tech. If you buy an article from the patentee, you may freely re-sell it. You may not deal with it in a way that results in making lots of copies of it, and then sell the copies, even if the copying was “foreseeable” and the rights in the original were exhausted.

  71. That is the only logical position. Otherwise you have effectively granted a patent on the natural phenomena of a seed producing progeny.

    That is not man’s doing. That is pure nature.

  72. I agree. Man cannot take from nature that which belongs to nature and that means that if nature takes a seed and makes many more seeds, then no patent ever can take that right from nature. No such patent right exists. It cannot exist.

    Prometheus rules on this matter. Monsanto can patent their changes, since those changes are not in nature. They cannot have as a patent right hte natural make of a seed producing its progeny. That progeny must be free. Otherwise there is an effective capture of a natural phenonenom that cannot belong to any patent holder.

    Seeds grow and make. That’s what they do.

  73. Jeremy Bloom, “…but once it is out in the world they have to relinquish control.” That is essentially what Pierson v. Post teaches us: One cannot have property rights in wild things unless one maintains control and provides adequate notice to others of one’s claim.

    Wild things are the property of none.

    That said, if one takes something from the wild, controls it and essentially tames it, one can assert property rights in it. But in the case of a patented seed, or organism, who has the right to make, use and sell? The person who took the things from the wild, assumed control, etc., or the patent holder?

  74. Bad Seed, what happens after the first crop is produced from the commodity seed is the real problem. I believe it is your position that the farmer has no further restrictions and can continue to plant, harvest, sell and replant ad infinitum without restriction. Is that your position?

  75. anon, you seem to assume no one can have a coherent conversation where a particular poster is assuming multiple identities, or when there are numbers of posters making different points.

    Just to make it clear, I think the farmer has the right to plant the commodity seed. To the extent that the Federal Circuit said that he did not, the Federal Circuit is clearly wrong.

  76. You, I don’t know how many times I have to say this, but I fully agree with your position. The purchaser of the commodity seed should have the absolute right to plant that seed.

  77. Bad Seed, the problem with your analysis clearly is this: you seem to contend, and correct me if I’m wrong, that a farmer purchasing patented seed is thereby granted a license to continue to grow more patented seed from the purchase seed without any restriction on all.

    If this is true, any farmer, at any time, acquiring even one patented seed from Monsanto or one of its licensees without restriction, could essentially get into business in competition with Monsanto by planting and selling the patented seed on the open market.

    The consequence of such a rule would mean that at no time could Monsanto ever sell, or authorize the selling of, the patented seed to grain elevators, which presumably only accept seed on an unrestricted basis.

  78. anon, indeed. The patented seed will tend to spread across the earth on its own. If a farmer is keeping seed to plant for the next year, and if that seed contains the patented seed however small in quantity, and if that planting is an infringement, then plainly the Federal Circuit has a screw use.

  79. I agree with your post except for this:

    “I know of no law that supports the thought that rights, once lost, somehow reappear based on subsequent actions, no less actions that are fully legal in and of themselves.”

    While I think it clear that the patent rights are exhausted in the particular seed, I do not agree that the buyer of that seed has been granted a license to continue to plant patented seed in perpetuity. I think that is what you actually contend think that is wrong.

  80. In view of Prometheus, there might be a colorable argument that the “make” portion of Monsanto’s patent is void as simply being a natural phenomenom.

    Effectively, Monsanto is claiming “plant a seed and grow a plant that creates its own seeds.”

    To the effect that any patent aspect survives a generation, that patent aspect is exhausted under the Univis case as having been present in the initial sale. To the effect that it wasn’t present, the law of nature quashes any supposed right.

    Heads the farmer wins, tails Monsanto loses.

  81. Ned,

    You are up to your old tricks again. You are ignoring the points being made against your position and merely repeating your points.

    Please engage in the discussion. Synthesize the points that have been made.

  82. That is a waste.

    That statement does not make sense.

    My position has nothing to do with NOT permitting the sale of the seed crop.

    Where are you getting this?

  83. On what basis would you deny the right to plant the crop of commodity seed bought on the open market with NO limitations?

    You are assuming the very position you are trying to prove.

    You ask “Is that so hard?” That is simply the wrong question. Anyone buying commodity seed on the open market that comes with no limitations, cannot be made to have limitations imposed because that person used the seed for its purpose.

    You seem to not understand why the doctrine of exhaustion exists to begin with.

  84. There seems to be some major confusion on the use of “isolated” or “purified” to distinguish patent eligible subject matter in a first instance (nature verses man) and the use of those terms to somehow reinvest patent rights which may have been exhausted through a naked sale.

    I know of no law that supports the thought that rights, once lost, somehow reappear based on subsequent actions, no less actions that are fully legal in and of themselves.

    A bag of mixed seeds simply is not the same thing that the terms of “isolated” and purified” would pertain to in the sense used under the patent eligible subject matter discussion because the bag of mixed seeds is not something that happens on its own in nature. Someone created that bag of mixed seed in the first place. If, as apparent here, that mixing was done with no limitations on the results, then there can be no “sleeping’ patent right that attaches to the bag of mixed seed. The facts here indicate (and quite strongly so) that Monsanto was fully aware of, and condoned the sale of its patented item to place all of its rights in that item in a state of exhaustion. They can no more rightfully claim “make” rights than someone selling those same “make” rights directly and then a few weeks later wanting them back. The rights simply do not belong to them anymore.

  85. On its face, there’s something seriously wrong with your position

    There is nothing wrong with it.

    There is everything wrong with not recognizing that THAT is what seeds do (and have always done).

  86. if the farmer modifies a seed into a pure form

    More BS from Ned.

    This happens by the laws of nature. Re the example given above (and which you ignored) of the small farmer in the middle of others who spray pesticide.

    All you want to do is yank your magic rabbit.

  87. Bad Seed, your words not mine.  We are in substantial agreement; except that you want the original sale of the seed to the grain elevator to fully exhaust Monsato's patent rights for even future generations of seeds produced from the sold seed.  On its face, there's something seriously wrong with your position, because there is nothing in your position that would prevent the farmer from isolating the patented seed from the commodity seed and getting into competition with Monsanto.  That , in my opinion, is ludicrous.

    That being said, I think you're right with the particular seed that was sold to the grain elevator.  I think the grain elevator has a right to sell to farmers, and the farmers have a right to plant that seed.  This right may extend the future crops made from that seed where the farmer does nothing to modify the nature of the seed from a commodity seed into the patented form.  However, if the farmer modifies a seed into a pure form I think he becomes an infringer.

  88. Jerry, thanks.  I suspected as much, which is why I thought the Fed. Cir. ruling was wrong.  Monsanto should be able to sue Bowman only if he converts his commodity seed back into pure patented seed (viewed by field).  Otherwise he is doing only that which he has always had a right to do, just as is the grain elevator. 
     
    What the Federal Circuit has done here is equivalent to the information patent produced by Prometheus.  Prometheus's patent turned doctors who were doing nothing more than what they previously did into infringers simply by the patent owner introducing into the environment its patented idea, or in this case the patented seed.  There is no difference in kind between the two cases, and the vice is the same.

  89. Let us agree to disagree then.

    Ned does not want a discussion. He wants a monologue.

    He wants to throw his half-baked ideas out there and brooks no-one pointing out how half baked they are.

    Like a bad magician in Vegas, he does not care how few are in the audiance, or even if they are sober. As long as he can yank his magic rabbit out of his hat and please himself, then the rest of the world can rot.

  90. Jeremy,

    That is an old can, opened long ago and the worms have escaped. See the supreme court case Chakrabarty where it is explained (back in the day when the supreme court offered explanations).

  91. Okay, let’s open up a can of worms.

    Is the reason why everyone here, and the courts in particular, are tying themselves up in knots over this case, because…. the government should never have allowed patents on lifeforms in the first place?

    It’s pretty certain that the founding fathers would have considered the idea of patenting a soybean laughable.

    Couldn’t SCOTUS solve all of these thorny problems by simply ruling “A gene is not an invention, a bean is not a patentable device, and Monsanto can do with its new breed of soybean what every other breeder has done for 10,000 years: Develop it, and sell it, and make money off it that way; but once it is out in the world they have to relinquish control”?

  92. To digress from law to business for a moment, the implications of this case are clear, and nobody is talking about them…

    There is a longstanding business model by which farmers purchase commodity seeds from elevators for use in planting. This ruling destroys that business model.

    Bowman pointed out in his defense that if Monsanto wanted patent protection in the second generation, the licensing agreement should require their seed to be segregated in the elevator. But Monsanto didn’t do that.

    Why not? The results speak clearly to the intent: now, ANYONE that buys bulk commodity seed risks incorporating some Monsanto seeds and facing lawsuit.

    Monsanto is using the courts as a blunt instrument to destroy its competition – just as it sued and put out of business seed sorting companies.

  93. The way it works in the real world:
    1) A farmer plant organic corn, and wants to have nothing to do with Monsanto’s GMO seeds, which by definition can’t be organic.
    2) The wind blows Monsanto’s pollen, containing Monsanto’s GMO patented genes, into the farmers field, fertilizing his corn.
    3) The farmer harvests his corn, selling some and saving some for next years seed, as farmers have been doing for 10,000 years. Unbeknownst to him, some of that saved seed now contains Monsanto’s genes.
    4) The farmer plants his next crop. Monsanto investigators sneak into his fields and take samples (yes, they really do this). They test and find their patented genes.
    5) Monsanto sues for patent infringment, and wins. Most farmers now settle out of court, rather than going up against the behemoth.
    Some examples: CBS News: Agricultural Giant Battles Small FarmersAn alfalfa farmer explains why he sued Monsanto; Monsanto vs Farmers (pdf)

  94. The Court hasn’t granted cert yet, so this is a bit premature. But if it does, it’s not likely that Thomas will recuse himself, nor do I think he should, if his only connection to the case is that he was formerly employed there. He left Monsanto 33 years ago!

    For what it’s worth, Thomas participated in a 2010 Monsanto case, Monsanto v. Geertson Seed Farms. Monsanto won, 7-1. (Stevens dissented, Breyer did not participate.)

  95. Ned,

    You keep offering shallow platitudes divorced from what the discussion should be on: the law as applied to the facts.

    You need both.

    Looking at both, and assimilating the facts into the situation, it is very clear that the Federal Circuit have not applied the law correctly.

    I do understand the point of view expressed in your second paragrpah. What you don’t seem to understand is that valid points have been raised against that view several times now, and you continue to ignore those points, merely repeating your initial ideas. Remember: discussion is a two way street.

    You are not engaging the conversation – just as you indignantly accused others of doing.

    Further, you keep on lamenting how any (true) application of exhaustion would essentially destroy the economic value of seed patents.

    Simply not true.

    Bad Seed aptly presented the Univis case which is on point – both to sold and not yet made as well as to choice of business method necessarily falling to exhaustion doctrine, and in particular, the ability of the patent holder to ask for his due up front with the first sale. You keep ignoring this. Your alarmist position is simply unfounded.

    You need to glean these ideas and synthesize them.

    Your last paragraph is simply more of the same – you repeating things wihtout paying attention to the points raised against that position. You have not engaged. Your desire – and that is all that it is – remians unattached to any legal theory of ownership and exhaustion. As BS puts it, you are pulling magic rabbits out of a black hat.

  96. Anon, come on now.  The Federal Circuit is absolute correct on the law that a sale of an item does not exhaust the right to make.  However, I have been consistent, I believe, that the result of this rule in this context raises complications.  I have been pointing these out since the first post I've made on this topic.  For example, I believe that the farmer should have the right to plant the commodity seed free from the patent.  Thus there is a direct conflict between the law that planting any patented seed is infringement by making and what I believe to be the right answer. 
     
    I further believe that the farmer has no right to take the commodity seed, process it in some fashion so as to remove the unpatented seeds, so that the remaining seed ends up consisting substantially of only the patented seed.  This would allow the farmer to wholly replace Monsanto for future crops.  It would even permit the farmer to begin selling the patented seed in competition with Monsanto.  Such a rule would essentially is destroy the economic value of seed patents.

    This is how I see the picture, but what I am looking for is illegal doctrine to connect the dots from here to there.

    One thing I thought of is this:

    The unrestricted sale by Monsanto or a Monsanto licensee of the patented seed allows the purchaser to plant that seed.  But it does not carry with it a license to plant the seeds produced by the subsequent crop.  I don't think this is entirely sufficient because I think it farmer should have the right to continually plant the output of the subsequent crop from commodity seeds so long as he does not intentionally try to call out the unpatented seed.  But the beauty of the rule is that it is simple and easy to understand.

  97. Okay.  But we had a long discussion that the terms "isolated" and "purified" are terms that describe compounds that have undergone some process to distinguish them from nature.  They seem apt to me here, but if you object to the use of the terms in this context, please suggest alternative terminology.

  98. Ned,

    You are at it again, you are not engaging the conversation and you are merely repeating yourself.

    You are not synthesizing the points being made (while I give you kudos for at least recognizing Bad Seed’s points). But acknowledging “good points” and then making a post that ignores those points is not kosher. This type of behavior is exactly what I pointed out to you two days ago.

    Further, your position is most unclear as you state both that you think the Fed has a strong case (“ think the Federal Circuit is on strong legal grounds here“) and (now) that you think the Fed is wrong (“Strong case? I in fact disagree with it“).

    Also, you indicate that rights are lost (“by not giving notice to others of one’s claim, one looses his property right.“) but that rights are somehow revived based on an innocent purchaser’s (or in the neighbor’s spraying example by BS on someone else’s) actions that somehow, without legal basis magically reappear during subsequent use.

    Your posts appear at best incoherent. I think this comes from a desire to avoid a straight forward application of patent exhaustion. I am at a loss as to why you feel so strongly about this, but your contortions are painful to witness.

  99. only by first isolating or purifying

    ARRGGHHH.

    STOP.

    Those are terms of art and your use of those terms here is OFFENSIVE.

  100. I think an argument could be crafted that the right to make, i.e., plant, extends only to substantially pure patented seed.  If this is the case, the farmer would infringe only by first isolating or purifying the patented seed from the unpatented.

    Sent from iPhone

  101. The paper does not support your stated position that merely giving notice is enough. In fact, in the hunt, notice was given and still Pierson got the fox through pure possession.

    This speaks to the Fed getting it wrong.

    I don’t imagine that you brought up this case to weaken your original stated premise that the Fed had a strong case.

  102. That seems to be the basic law which we previously discussed, Pierson v. Post.

    Still a very poor analogy.

    You would have someone who possesses the fox (kept live for a proper analogy) lose rights tot that fox by taming it, while still possessing it (your farmer who culls the seeds).

    You need to do more to make your case than merely provide the start of an analogy.

  103. I think I found something that fits:

    Alan Watson makes the general point that cases removed from their legal context are
    incomprehensible.

  104. True, Pierson v. Post started with wild animals.  But it said that one did not have a property right in a wild animal unless one had control of it, and "gives notice to others" that they claim control.  Therefore, if one surrenders control or looses control, e.g., by not giving notice to others of one's claim, one looses his property right.
     
    Check this recent law review article discussing the case.  The two opposing theories of the essential attributes of a property right that are fundamental to the case are laid out very well.  
    Andrea McDowell, LEGAL FICTIONS IN PIERSON V. POST
     link to michiganlawreview.org
     
    What one sees is that the Federal Circuit has somewhat come down on the side of the dissent in that case.
     
     
     

     

  105. Peirson v. Post is not on point, as that case starts with wild animals.

    Monsanto does not start with wild seed. They choose to make their seed “wild.” And it is explicitly in that choise that they give up any patent rights. Hence, exhaustion is total based on Monsanto’s choice.

  106. Bad Seed, "For a seed, "use" (which is sold, and exhausted) = "make."
     
    The same could be said of anything alive.
     
    So, we seem to agree, then, once you release a live thing in to the wild, it is no longer the property of one man.  That seems to be the basic law which we previously discussed, Pierson v. Post.
     
    This is going to be a tough one for the Supreme Court.

  107. The Federal Circuit recognized that without this right, to prohibit planting of even sold seed, that patents on seeds would be worthless.

    Balderdash.

    You get the worth at the time of the sale.

    It is not patent law that has been in place to protect the chosen Monsanto business method. It has been contract law and the enforcement of agreed upon restrictions.

    No magic appearing bunnies allowed after sales withour restrictions.

  108. There is one point missing:

    For a seed, “use” (which is sold, and exhausted) = “make.”

    There is no other purpose of this particular patented item except to “use” when planting (and therefore “make” must be included).

    Call it the anti-1). Realizing this removes the conflict. Ignoring this creates the conflict.

    I know you gave the example of culling. It didn’t work the first time. It still doesn’t work. Your sense of “purified” is an additional faultiness (think bacteria in roots). If you want to hold a reasoned discussion you should be more careful with the terms of art you loosely bandy about.

    In fact, the error in your logic is self evident. That’s assume for the moment that the farmer buys and does not cull.

    According to you then, he can plant his seed and “make” without infringement.

    Now what happens after he has performed his perfectly legal “make,” when a few weeks later as the young seedlings have sprouted, the farmer sprays his field with pesticide?

    Now, after the perfectly legal “make” has been done, the culling is done with pesticide, as those seedlings that do not have the trait are killed by the pesticide.

    Has he now infringed? Must he be restrained from using a third generation of crop as he sees fit (that had no restrictions and whichuse would be a natural use thereof)?

    What happens if he is merely a small farmer who does not spray, but his neighbors all about him do, thus killing the seedlings that do not have the trait?

    Does he still infringe?

    Would you now not allow a farmer to harvest his own fields and use his own seed, as a farmer has always had a right to do when he has bought seeds that have no restriction? Will you have a perpetual magic rabbit reappearing anytime after a sale

    It might help you to think of the lens case as instructive: an unfinished lens that was sold and still exhausted the patent right even when “make” was not finished.

    When “make” and “use” become comingled, exhaustion rules because the Court has already determined that in United States v. Univis Lens Co., 316 U.S. 241 (1942).

    When the sold item embodies the essential features (and that includes the feature of self-regulation) “[t]he reward he demanded and received is for the article and the invention which it embodies and which his vendee is to practice upon it. He has thus parted with his right to assert the patent monopoly with respect to it”

    The Court declined to try to separate (and preserve) the beneficial or pro-competitive features of the licensing system from the illegal ones. Likewise now, the Court should decline to make a magic rabbit jump out of a plain black hat.

  109. Summary of the problem:

    Fed. Cir.:

    1) Exhaustion does not authorize reconstruction. The right to make is not exhausted by a sale.

    2) Planting of commodity seed is “making.”

    The problem:

    3. Grain elevators have historically bought seed and sold it without restriction. They should be liable under any patent theory, direct, indirect, if they buy seed from licensed farmers who have a right to sell without restriction, and they do here.

    4. Farmers have historically purchased commodity seed from elevators and planted the seed. The mere fact that Monsanto allowed its patented seed to be mixed should not change this basic right.

    There is a basic conflict between patent law and historical practice. The conflict is caused by the nature of the patented product, seeds.

    I think the law should recognize the historical practice, but not go so far as to suggest that the patent owner’s rights to prohibit planting (making) are exhausted. I gave the example where the farmer culled from the commodity seed, using some process, substantially all unpatented seed, so that he could retain and plant the now purified, patented seed in the future completely replacing the need to purchase the patented seed from Monsanto or its licensed vendors.

    The Federal Circuit recognized that without this right, to prohibit planting of even sold seed, that patents on seeds would be worthless.

  110. Exhaustion is, or it is not.

    You cannot have a magical rabbit appearing and disappearing in a black hat.

    Someone can either use the seed purchased without restriction on the commodity market or they cannot. To preface use on a post-purchase refinement step (the cull or the tame) is nonsensical.

    If you want to discuss things, please stay away from fantasy. And stop complaining about “sockpuppets.” Who do you think you are, MM?

  111. Your “discussion” consisted of your one-way driving blithely unaware

    Ned’s too busy on the phone with his wife discussing the thousands of people driving the wrong way down a one way street to notice that he is the one driver not paying attention to the street signs.

  112. Ned,

    You are so full of yourself. Discuss the points instead of not discussing them and then discussing how no one is discussing the points.

  113. Ned,

    You were “wrong” in a number of ways. Your wild animal analogy never got off the ground because it was illogically based, your desire to delve into copyright principles is inappropriate to the patent-specific issue, and as mentioned, you ignored the multiple points raised that severely weaken both the Monsanto arguments and the legal reasoning used by the court.

    Your “discussion” consisted of your one-way driving blithely unaware of the multiple facets of the entire thread conversation.

    You capped it off by playing your “indignation” card (again), and accusing others of that which you were “guilty” of – refusing to engage in a serious discussion. You simply did not engage.

  114. save perhaps for yourself.

    There are far better reasons to detest others. Substantive reasons.

    “Sock puppets” don’t bother me at all because I focus on substance and not on author – or multiple authors. Synthesis evolves from all of the comments. It has been noted that your response habits are part of your “problem” (by that, I mean that by not reading all the posts, you miss points not made directly in response to your posts and your replies are disjointed to the totality of the conversation. I recognize why you have this habit (long threads and the use of your email response notifier), but it is nonetheless not a good habit to have.

    I notice that those who seem to have the most trouble with sockpuppets (even those like Malcolm who himself uses them) are those who seem to have the least substance – or those who do not care to synthesize the full conversation. This is part of what I allude to when I say that you appear to only have a concern for having your say. You give the distinct impression that you don’t care what others say (except for an odd few that generally agree with you major points of view).

    You seem to drop into the Malcolm-like accuse-others-of-sockpuppets routine whenever a conversation takes a turn to the detriment of your position and you have no answers on the points raised. I don’t know why you have picked up this habit from Malcolm, but it is cheesy and easily seen through. It also goes directly against the notion of having a give and take discussion (all you want to do is give). “Discussion” is not a one-way street.

  115. anon, as you know, I refuse to even read sock puppet posts because they are posted by a very sad, belligerent person who is as unpleasant as all get out.  Every regular poster here thoroughly detests him, save perhaps for yourself.
     
    I thought Bad Seed was not he.  But, I was wrong.  How I was wrong.
     
    I have no idea what the sock puppet was saying in this thread. I was simply responding to Bad Seed and what he was saying. 
    Regardless, it was a very bad mistake trying to engage Bad Seed in a conversation given that he apparently was using numbers of other identities to carry on the conversation, which I completely ignored.
     
    Thus, your point about not responding to his (Bad Seed's) points are inapposite unless you factor in that Bad Seed's alternate egos were making his points as well. 
     
    Still, for a time, Bad Seed was polite and seemed to be willing to discuss the issues politely.  Then all of a sudden, he reveals himself in a very belligerent post showing that he was the sock puppet making the other posts all along.
     
    I made the mistake in not recognizing the sock puppet from the beginning. 
     

     

  116. Ned,

    While not condoning rudeness (haphazardly – some have earned rudeness), I cannot say as that I am surprised that you are once again receiving flack for your posts.

    Perhaps you should pay attention to which direction the one way street signs are pointing.

    You did a nice job with your reply Apr 07, 2012 at 04:52 PM, providing a link and pointing out factual differences.

    However,…

    From there you went on some wild tangents and you ignored valid points brought up against your position. People generally don’t like to be ignored, and most consider your lack of response to the points made to be rude.

    This is not the first time.

    “Replying” by merely repeating what you previously posted is not engaging in a serious discussion. I really don’t think you are aware of how difficult discussions with you can be. Yet, it is you that is very quick to play the indignation card. With all due respect, and not as an attack, you come across as a one who only wants their say and will not listen to reason. You blindly pursue your points when they make little to no sense given other points raised. It’s a sign that you simply are not listening to anyone but yourself. For you to then bring out the charge that the other person is not willing to engage in a serious discussion comes across as an unprovoked slap in the face. You might find it easier to have such serious discussions by acknowledging what others say, even if that means saying “I was wrong.”

    I’m just saying.

  117. refuse to engage in any serious discussion

    You cannot seriously consider your Wild Animal and Copyright ideas “serious discussion.”

    You have avoided any serious discussion when the flaws to your analogies are pointed out and you are asked to address them but you pretend nothing is wrong.

    You refuse to do anything except offer vague and nebulous postulations. You refuse to address actual facts. You refuse to even consider what Patent Exhaustion means in the context of a patent exhuastion case. You refuse to even acknowledge the dichotomies you create.

    Name calling? I have called you no names. I have merely and accurately described your lack of serious discussion.

    When will you begin a serious discussion by recognizing the facts, the law and the inaptness of your proferred examples?

    When will you get serious?

  118. Caught once again!   Why do I ever fall for these sock puppets.  They refuse to engage in any serious discussion and at some point revert to name calling.
     
    Bad Seed, I regret ever having replied to you.

     

  119. BSEFEETS has Ned nailed.

    Ned wants to make things more “sophisticated” when he cannot even handle the basic facts and law of the immediate situtation.

    First animals and property law in a wild display of inanity, now the desired conflation with copyright?

    All this to preserve some lunatical fiction that somehow Monsanto, despite the plain evidence of the facts of the case, have not exhausted their patent rights?

    A little clue that needs not wild animals or copyrights to understand: when you purchase something without restriction, the “without restriction” part pretty much means that you do not have restrictions.

    You do not have restrictions on your ability to cull.
    You do not have restrictions on your ability to tame.
    You do not have restrictions on your ability to plant.

    The rest is a repeat that still applies:

    Basically you are now saying that if the farmer takes the wild seed, tames it (isolates), then magically, a patent right reappears.

    You have lost all sense of connection with your analogy. Exhaustion applies and should not be dependent on future acts by others (e.g. taming).

    You are making this far more difficult than it needs to be.

    You also have not corrected the flaws of your analogy, nor addressed the facts of the case(s), nor appropriately understood what the law should be.

    Not only can you not say “I was wrong,” but you compound that by trying even more intricate rationales on top of poorly constructed ones.

    It just keeps on getting more and more ugly for you.

    It is apparent that the multiple beatdowns that Ned has received have truly addled him.

  120. To use a copyright analogy, there is fair use and there is unfair use.

    Planting the commodity seed would be fair use. Culling out the unpatented seed using some process so that one ends up with pure or isolated patented seed from the commodity seed, and then planting it, would be unfair use because would substitute for the original work.

    The bottom line is I don’t think exhaustion works in this case. The patentee’s rights to make are not exhausted. We need a bit more sophisticated analysis, from copyright law or from the law of property.

  121. FwS, you are flat wrong. I wasn’t laughing AT OaS. Rather, I was gayly rejoicing at the sheer brilliance of the “sounds/vowel/consonant” joke which the OaS posting gave wl the opportunity to create. I think that such a high level of creativity and wit enhances this blog, and so should be encouraged. OaS would agree, I’m sure.

  122. Are you asking me personally, or is that a rhetorical question?

    Yes (figure it out).

    And are those really my only choices?

    Of course, most definitely, well maybe, let me get back to you.

    Can’t I instead spend my time baiting you into an endless string of substance-less comments?

    You can try, and of course your comments can be of that substance-less variety, but my comments always have substance.

  123. Where would you rather spend the “correcting” efforts? Spelling or substance?

    Are you asking me personally, or is that a rhetorical question? And are those really my only choices? Can’t I instead spend my time baiting you into an endless string of substance-less comments?

  124. Where would you rather spend the “correcting” efforts? Spelling or substance?

  125. Pointing out spelling errors is a waste of time.

    Right. But pointing out lack of substance in “vacuous” posts is not. I think I get it.

  126. Your definition of ‘wild’ is itself wild.

    Basically you are now saying that if the farmer takes the wild seed, tames it (isolates), then magically, a patent right reappears.

    You have lost all sense of connection with your analogy. Exhaustion applies and should not be dependent on future acts by others (e.g. taming).

    You are making this far more difficult than it needs to be.

    You also have not corrected the flaws of your analogy, nor addressed the facts of the case(s), nor appropriately understood what the law should be.

    Not only can you not say “I was wrong,” but you compound that by trying even more intricate rationales on top of poorly constructed ones.

    It just keeps on getting more and more ugly for you.

  127. One can be punny without being vacuous.

    Far too many posts have little to no substance. Pointing out spelling errors is a waste of time.

  128. Bad seed, I think you might see my point a bit better if you consider what would happen if the farmer somehow was able to isolate the patented seed from the other seed, and then completely substitute the isolated patented seed henceforth even in his spring planting so that he would no longer have to buy any seed from Monsanto. I think this would be patent infringement.

    I think the farmer is protected only so long has he is dealing with seed in its so-called wild state, seed that is mixed in with other seed that is not patented. So long as he keeps on buying commodity seed and planting it, he should not be subject to a patent infringement suit.

  129. Because noticing and laughing at small mistakes in form is so much easier than any substantive take on really important matters….

    Oh, lighten up. As Max was kind enough to point out, rapid typing inevitably leads to spelling errors. Not all of those errors provide punning opportunities, however.

  130. Because noticing and laughing at small mistakes in form is so much easier than any substantive take on really important matters….

    wl and M, thanks for the meaningless posts. My day is so much more empty with the gaiety provided.

  131. Not too weary, thank goodness, to take the trouble to compose such an amusing comment. For sure, one can grow weary of all the spelling mistakes these days. One appreciates that most of them arise from over-hurried keyboarding but when the chance arises, as here, to make something of them, it does add to the gaiety of this blog. My thanks for the laugh.

  132. Sounds like clear disavowel to me.

    Perhaps it sounds like it, but your spelling is disconsonant.

  133. “The unrestricted sale to the grain elevators did not exhaust Monsato’s rights regarding planting. Each act of planting was “making.” “

    You seem to contradict yourself below (in the smokescreen of a wild animal). Below you indicate that the loss of control loses all rights to Monsanto, but here you indicate that the right to “making” must remain intact.

    You cannot have it both ways (for obvious reasons).

    It is so very hard for Ned to simply say “I was wrong.”

  134. Bad seed, when one is dealing with something that replicates in the wild, releasing it into the wild really, IMHO, abandons one’s rights say that someone else, dealing with the wild thing has done you harm.

    In the case of the fox, the huntman had no more right to fox than the pedistrian because the fox was wild and was owned by no one. Ditto the seed in the public domain.

    I think Pierson v. Post takes us in the right direction.

  135. we know that the sale of a patented item to an end user does not include the right of the end-user to reconstruct the patented item after it is beyond repair.

    To-may-to, to-mah-to

    See link to ipwatchdog.com

    See also link to en.wikipedia.org

    In Jazz Photo Corp. v. United States International Trade Commission, 59 USPQ 2d 1907 (Fed Cir August 21, 2001), Fuji Photo Film asserted that the user of a single-use camera was not allowed to remove the film, process it, replace the battery, or package it in a new cardboard container, based on labelling on the camera warning the purchaser that the camera should not be opened. The ITC held that these steps amounted to reconstructing the camera and infringement of the patents.

    The decision was reversed by the Federal Circuit on the grounds that the labelling was not an enforceable restriction on the use of the camera, that “no licence limitations may be implied from the circumstances of sale” (59 USPQ 2d at 1917),
    and that the challenged activities merely repaired the camera and extended its useful life

    However, this case has a decidedly different wrinkle.

    The unrestricted sale to the grain elevators did not exhaust Monsato’s rights regarding planting. Each act of planting was “making.”

    You seem to contradict yourself below (in the smokescreen of a wild animal). Below you indicate that the loss of control loses all rights to Monsanto, but here you indicate that the right to “making” must remain intact.

    You cannot have it both ways (for obvious reasons).

    I think you have to realize that when “use” necessarily invokes “making,” that the sale for “use” also exhausts the control over “making” when that “use” is actually done. The Monsanto Co. v. McFarling, 302 F.3d 1291 (Fed. Cir. 2002) case is distinguishable (and should have been distinguished) by the fact in that case that the original use was not completed (seeds were saved from one planting season for the next planting season). That decision has its own foibles, made worse by an inept inclusion in this case.

  136. The problem here is not exhaustion.

    No.

    The problem is very much exhaustion.

    You have to start with the fact that the original seed is not like a wild animal to begin with (thus your analogy to the Pierson v. Post case stats off poorly – perhaps fatally so). No one is making any such statement that Monsanto does not righfully start off properly owning all patent rights in their original seed. The seed is simply not a wild animal.

    But you are correct (in part) on the loss of control.

    But since the wild animal analogy fails, something else must explain the likely result of (correctly applied) law. Something else must account for the public domain nature of a “twice-sold and uncontrolled mixing as a commodity without need of limiting license” seed.

    The law is only as good as it is applied to the facts.

    The law (as applied) by the Federal Circuit is not right.

    That is why the Supreme Court (if it takes the case) would likely smack down the Federal Circuit once again.

    And rightly so.

  137. Let me clarify that. The Federal Circuit was right on the law of exhaustion. The problem here is not exhaustion. The problem here is the problem of who owns the seed or who controls the seed just like in the Pierson v. post case.

    Sent from iPhone

  138. I think the seeds are like the fox, wild.  One owns them only extent that one controls them.

    Releasing a wild animal back into the wild, loses control. That act surrenders all property rights one may have had in the wild animal. Ditto the same with the patented seed. Releasing control of it by allowing sales to a grain elevator to be mixed with other grains, Monsanto loses control . The seed becomes again wild.  It is now in the public domain.

    Sent from iPhone

  139. Because it is really not clear what you think will happen, since earlier you stated the Fed Circ had a really strong case and it appears that they have a really weak one.

  140. ????

    Clear as mud.

    So is Monsanto’s basically uncontrolled allowance of secondary sales to grain elevators and the treatment (uncontrolled mixing as a commodity without need of limiting license) exhaust Monsanto’s patent rights and make the seeds “wild” and thus rightfully belonging to whomever possesses them, or is this an example of the opposite of the Pierson/Post case because the twice-sold seeds were never actually wild to begin with?

  141. I that the Supreme Court will take the case.

    This case is like the famous case New York Supreme Court of Pierson  v. Post.  Who owns wild animals? The answer is, the person who controls the wild animals.  If you release a wild animal back into the wild, and someone kills the wild animal, you have no right to complain.

    I think the Supreme Court will come out pretty much this way.

    Sent from iPhone

  142. Ned Heller said in reply to Bad Seed…
    Food?

    But the Feds are right on the law generally. A sale of an item does not include the right to reconstruct it. It only includes the right to use and sell the item.

    This is not the first time that the Fed has applied the law in a lazy manner (e.g. eBay). One MUST apply the law to the facts present and in a case like this where “use” entails “make” because of the very purpose of the invention, the sale must exhaust the patent rights. Further, as Particular Facts notes, the facts of this case speak against Monsanto.

    No Ned, the Feds do not have a strong legal case here. This is simply not a “general” situation where law can be looked at in a vacuum, or looked at in a cursory or lazy manner.

    This is exactly the type of case that the Supreme Court loves to use to put the Federal Circuit in its place.

  143. Food?

    But the Feds are right on the law generally. A sale of an item does not include the right to reconstruct it. It only includes the right to use and sell the item.

    This is a case of first impression and if the Federal Circuit is not not going to step up to the plate and consider the broader issues, which it normally does not do, the Supreme Court must.

  144. without requiring growers to place restrictions on grain elevators’ subsequent sales

    Thus in the facts of this case, there is no special limitation in play.

    The court blew this one.

  145. If the patent holder wants to charge a higher price (due to the self-replicating nature), that’s completely apart from any doctrine position.

    compare “Because Bowman considered the second-crop to be a riskier planting, he purchased the commodity seed to avoid paying the significantly higher price for Pioneer’s Roundup Ready® seed.” and the incorrect tie-in to the McFarland case (based on a different FACT pattern; “In any event, the court stated, “[t]he ‘first sale’ doctrine of patent exhaustion . . . [wa]s not implicated, as the new seeds grown from the original batch had never been sold. The price paid by the purchaser ‘reflects only the value of the ‘use’ rights conferred by the patentee.’”

    In the present case, the orignal batch was not only sold once, but twice.

    The court screwed up in applying the conditional sale exception.

  146. only to places where the seed will presumptively be consumed rather than replanted.

    Actually this is completely false. See the actual facts of the case.

  147. Before this court, Monsanto has twice eschewed any reading of the Technology Agreement to prohibit unrestricted seed sales to grain elevators as a commodity.

    Sounds like clear disavowel to me.

  148. Seeds just don’t work that way.

    Especially these types of seeds, wherein the invention lie solely in the growing (and not as meal).

    The court missed this one badly.

  149. The weakness I see is that “Monsanto allowed authorizes growers to sell second-generation seed to local grain elevators as a commodity, without requiring growers to place restrictions on grain elevators’ subsequent sales of that seed. Commodity seeds are a mixture of undifferentiated seeds harvasted from various sources, including from farms that grow Roundup Ready® soybeans and those that do not.

    To me, this introudces an inequitable aspect to then allow Monsanto to go after those who purchase an open-source commodity.

    If they wanted to protect their item, they should not allow it to be so openly mixed and placed in the uncontrolled public. For equity’s sake alone, I would count this as a naked sale and a full exhaustion of any rights.

  150. Fromthe case:

    In any event, the court stated, “[t]he ‘first sale’ doctrine of patent exhaustion . . . [wa]s not implicated, as the new seeds grown from the original batch had never been sold. The price paid by the purchaser ‘reflects only the value of the ‘use’ rights conferred by the patentee.’” Id. at 1299 (citing B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1426 (Fed. Cir. 1997)).

    Malarky.

    There can be no “use” of seed, without “make”

    Seeds just don’t work that way.

  151. GMG, see my post below at 04:52 for further explanation of what happened in the case. Apparently, the Federal Circuit held that a sale of seed does not exhaust the right to make, but only to use and resell. According to the Federal Circuit, the planting of seed is infringement of the right to make.

    I think the Federal Circuit is on strong legal grounds here, but even so I think the Supreme Court might take the case because of the consequences of this holding in that, given the nature of the patented product, patented seeds sold as commodities will soon spread throughout the whole environment making every soybean crop an infringement upon Monsanto’s patents.

  152. The case:
    link to cafc.uscourts.gov

    The facts appear to be a little bit different from the summary provided by Dennis. The farmer, Mr. Bowman, bought commodity seeds from grain elevators to plant as a second crop. It was this second crop, obtained from grain elevators, not retained seeds, which were alleged to be infringing.

    Under the Monsanto license agreements, licensed farmer has a right to sell patented seeds to grain elevators without imposing upon the grain elevator any restrictions on resale. What happens at the grain elevator is that the seeds from multiple farms are mixed together to provide so-called “commodity” seed. Thus purchasers of commodity seed, such as Mr. Bowman obtain seeds from multiple sources. It just so happens that in this region of Indiana, a significant portion of the commodity seed comprises the patented variety of soybean.

    The Federal Circuit held that the patent exhaustion doctrine essentially is limited to “use” and to resale. The unrestricted sale to the grain elevators did not exhaust Monsato’s rights regarding planting. Each act of planting was “making.”

    From the cases involving repair/reconstruction, we know that the sale of a patented item to an end user does not include the right of the end-user to reconstruct the patented item after it is beyond repair. Therefore the Federal Circuit’s legal authority seems to be sound. The doctrine of exhaustion does not include the right to reconstruct the patented item.

    However, in the case of seeds, as more and more farmers buy commodity seed and plant them, the patented seed will spread everywhere because it is mixed with un-patented seed. This would permit Monsanto to sue every farmer planting soybeans from commodity seed for patent infringement, perhaps limiting the damages to the percentage of the commodity seed proven to be the patented seed.

    Also if this doctrine is correct, Monsato never had to restrict the farmers by contract from replanting the seed it bought from Monsanto in the first place. The replanting of a retained seed would have been an infringement.

    But the consequences of allowing one to sell seed to grain elevators and then restrict purchasers of the seed from planting would almost force grain elevators to obtain a license from Monsanto to permit their customers to plant the seeds regardless of whether the commodity seeds sold contain any patented seed at all.

    Based upon this, I think this case will be taken up by the Supreme Court because the consequences of the Federal Circuit decision are dramatic.

  153. you’ve attacked the witness

    Don’t blame me – I didn’t show up to the gun fight with only a knife.

    Now try and address my question based on facts,using case law (Quanta) as it applies to biology

    You have shown no understanding of the basic “law” to be applied, so it is a little difficult to know at which level I should answer your questions. Why don’t you answer my question so that I know my answers will make sense to you (my post was not an attack on you – lighten up Francis). Do you know anything about exhaustion doctrine? (You might remember then, that exhaustion doctrine applieds to patents, and not just to biological patents.

    In particular, tell me how the second part of my argument is flawed

    Your second part of your argument doesn’t reach. That’s what happens when you follow the law (and you ask unintellignet questions). It might help if you understood exhaustion doctrine basics. I even initially let the first part of your bogus question go by: infringement does not depend on intent at all.

    If you insist on talking about legal subjects, the least you can do is show up with some basic understanding (or an indication of such).

    I can acquire the production strain under the conditions of the Budapest Treaty

    Then you really did not buy them, did you? If you did not buy them, what do you think happens under the Exhaustion Doctrine?

    Don’t waste my time. Don’t waste your time. Come with some basic understanding and ask intelligent questions (and don’t be so sensitive).

  154. Patent exhaustion is a free pass for the article you buy. Once you start using it to make copies, those copies can still infringe.

    One seriously mIxed up individual IANAE.

    First, the “free pass” is not free. It was fully paid.
    Second, this harkens to the Univis Lens case in that the only purpose of the patented seed is to be planted. period.

    Thus this should be a spam dunk for finding exhaustion with the legitimate first sale.

    Lastly, it seems like you are mixing up copyright law with patent law. In patent law, the bundle of sticks is not broken up like it is in copyright law.

  155. You’ve answered the question like s true attorney- you’ve attacked the witness. Now try and address my question based on facts,using case law (Quanta) as it applies to biology, not only for transgenic crops, but also for other biotech inventions in which a live organism, or a DNA or RNA is the product that is sold.

    In particular, tell me how the second part of my argument is flawed, and why I couldn’t just as easily apply the logic presented in this thread to live vaccines, natural products that are produced via fermentation for which I can acquire the production strain under the conditions of the Budapest Treaty, nutraceuticals, probiotics, live patented cultures from dairy foods, etc.). If, as you suggest, the doctrine of exhaustion would apply, then the money spent by industry on protecting these inventions would be better spent or developing new products, hiring more scientists and engineers and replacing patent attorneys with contract lawyers.

  156. should support farmer

    Not sure I follow the logic.

    To ask the question in a different manner, why should patent exhaustion have anything to do with self replicating technology?

    A sale is a sale. Once sold, the patent is exhausted.

    If the patent holder wants to charge a higher price (due to the self-replicating nature), that’s completely apart from any doctrine position.

    How does the 101 point even reach?

  157. Agreed. But, USPTO should support farmer because that is most consistent with their position on 101. Broad patentable subject matter, but strong exhaustion doctrine for self replicating technologies. If they don’t support strong exhaustion doctrine, their 101 positions are overreaching

  158. But, what argument exists that the rights to the use of the invention are exhausted?

    The doctrine of patent exhaustion. That’s kind of the whole point.

    Do you know what that doctrine is? Have you heard of it?

  159. But, what argument exists that the rights to the use of the invention are exhausted? If the invention (e.g., the gene(s) for glyphosphate resistance) persist unchanged in successive generations then the farmer who uses the invention would infringe.

    If I were to follow your logic, then I could establish a company to compete with Monsanto, by some seed, clone the necessary genes out and transfer them to my variety of seed and sell them to farmers. I’m protected against infringement because Monsanto’s rights were exhausted.

    In either case, the intent is to infringe on Monsanto’s invention. If the latter case in infringement, so is the former.

  160. The real issue to establish is the intent of the infringer (e.g., the farmer).

    On the contrary, the farmer’s intent does not come into play. This is a pure legal question of what constitutes patent exhaustion.

    The intent of the farmer simply has no bearing if Monsanto’s rights are exahsted by the authorized sale. One can only bargain with what one has. If the patent exhausts upon sale, Monsanto has no right to the license terms of future use, whatever that use the true owner deigns to commence.

  161. An interesting argument, from a legal perspective. But from a biological perspective, the issue of self-generation probably does not apply, or could be successfully argued against.

    The real issue to establish is the intent of the infringer (e.g., the farmer). Wy would he/she decide to plant a second or third generation of a GM crop as opposed to a non-GM crop. Because it has non-natural traits that, from an agricultural perspective, make it more profitable. In the case of the Round-up ready seed, it permits the use of specific herbicides to increase yields. What the farmer has done is intentional as there s no natural (e.g., evolutionary) advantage to this trait in a non-agricultural setting. The farmer has intentionally violated his/her agreement to the licensing terms of usage.

    The argument of self-replication is irrelevant. Glyphospahte resistance does not occur in nature in a manner that is relevant to the intended use in agriculture.

  162. The USPTO would almost certainly agree with the Federal Circuit’s opinion and recommend against a grant of certiorari.

    Why?

    What dog does the USPTO have on exhaustion doctrine?

  163. The judicial review should examine the evidence of Farmer’s intent

    Is exhaustion an “intent” question? Especially on the side of the farmer?

    I think not.

  164. So when they sell seeds for Flowers do they also control the use of the flowers. Monsanto just cares aboiut quarterly dividends as evidenced by the concept that we should feed people a product tahat uses more herbicides. They are irresponsible and more effective tests should be made to determine whast their culpability will be for the health of those who consume GM products.
    The EU has been testing and finding disease in livers and kidneys as a result of consuming GM foods.
    Soon class actions will be in line for serious intervention in Monsantos quarterly dividends

  165. This thread is longer than a row of wheat. Isn’t the ISSUE, to decide if the patent holder suffered from loss of financial gains when others use their idea in the intended manner.

    The judicial review should examine the evidence of Farmer’s intent and actions to cultivate the product for profit. Not simply contaminated field of purchased seeds.

    This should treat the subject fairly with justice for both Monsanto and the farmer. Proving intent is more than DNA of the seed, is it ?
    a) the population density of the seeds are mostly Monsanto’s
    b) farmer’s general botany practices are consistent with monsanto’s idea to use certain herbicides with higher efficacy

  166. LOL, that old joke again. Just like if someone parks his F150 on your front lawn, you can sue Ford in trespass.

    But that’s no more absurd then Monsanto suing the farmer who owns that field just for being there, and because they can (financially) is it? And I think the story changes when you park the pickup in the guy’s yard and not only does it start to replicate itself all over his property, causing damages, but it turns the guy’s import, or custom job, into a Ford. The claim starts to sound a bit less like a joke then. Whether or not there is currently precedent to cover that, it doesn’t change the fact that it can be interpreted as environmental damage for which *someone* ought to be held liable. Obviously to me the primary seed owner would be first in line to get sued, but then he wouldn’t be so friendly to Monsanto anymore for selling him such a dangerously unpredictable product.

  167. Actually, the lawn is a perfect example – the seeds are often there and thriving not by your own choosing.

    Thanks Pro Se for proving my point.

    (and remember, this has nothing to do with the poison that can be applied independently).

  168. The point of the matter is that the seed can (and does germinate and reproduce in conditions absent any interaction with man.

    In exactly the same manner as it does with interactions from man.

    Obviously, you do not take care of your own lawn….

  169. Just because the copying involves planting and watering and fertilizing

    The fallacy continues.

    The point of the matter is that the seed can (and does germinate and reproduce in conditions absent any interaction with man.

    In exactly the same manner as it does with interactions from man.

    The use of poisons to kill everything else is immaterial to the seed. It will still grow all on its own. It will still reproduce all on its own.

    Nature is kind of funny that way, and has been at far longer than any concept of “patent” has been around.

    Global-Tech is inapposite to this case.

  170. All correct, but patent exhaustion is.

    Patent exhaustion is a free pass for the article you buy. Once you start using it to make copies, those copies can still infringe.

    Remember Global-Tech? They bought one patented article and copied it. I’m pretty sure they didn’t have a valid defense of exhaustion.

    Just because the copying involves planting and watering and fertilizing, that doesn’t make it non-infringing.

  171. You might want to look into the other cases Monsanto has been involved in.

    You mean farmers can only afford bad lawyers? Or were they claiming that seeds from the next farm over blew onto their farm and coincidentally landed in a bunch of neat, evenly-spaced rows?

  172. Correct. Any other thing that happens is a contractual issue. < ?i>”

    Whatever happened to efficient breach?

  173. “Purchased.

    Hence exhaustion.

    Hence no ability to control what will happen subsequent (consume or replant).

    That is why the question asked by Monsanot completely avoids the use of the word “sold” or “exhaustion.””

    Correct. Any other thing that happens is a contractual issue.

  174. “Their innocence is not a defense to your infringement. Nor is the fact that Monsanto didn’t make infringement biologically impossible, which (if you think about it) would make their patent completely pointless.”

    All correct, but patent exhaustion is.

  175. “Great, then there’s no infringer and there are no damages.”

    You might want to look into the other cases Monsanto has been involved in.

  176. Just like if someone parks his F150 on your front lawn, you can sue Ford in trespass.

    No, It would be like Ford suing you for trespass.

  177. However, the real question is then, obviously I guess, what about the guy who buys the second generation seeds as *beans*, but ends up planting them. He is likely not party to any license or agreement with Monsanto, he is only subject to patent law.

    Those are the facts of this case, pretty much. I believe Monsanto’s position is that you can freely use the seeds (for consumption) that have been produced under license, but making more would be an infringement.

    Which is exactly the same position a manufacturing company would take if you purchased its patented article from a retailer and then started making and selling copies.

    Monsanto would be liable for damages to the land owner where the seed germinated,

    LOL, that old joke again. Just like if someone parks his F150 on your front lawn, you can sue Ford in trespass.

  178. One thing that confuses the issue perhaps is that the use of the seed is also it’s manufacture, unless you grind it up or use it for feed or something. To use the seed for it’s intended purpose is to reproduce it, the product of which can then be sold for profit. So without having read it I would guess the license allows a single generation of reproduction by the purchaser, the product of which may not then be used for it’s original intended purpose, but only disposed of (hopefully for money). Although I detest Monsanto and their business model, that part of it seems, as they say, legit.
    However, the real question is then, obviously I guess, what about the guy who buys the second generation seeds as *beans*, but ends up planting them. He is likely not party to any license or agreement with Monsanto, he is only subject to patent law. So obviously Monsanto wants to say that those aren’t beans, they’re seeds manufactured under license such that exhaustion doesn’t apply. They’re not a reproduction, they are original product manufactured under license.

    Obviously, seeds blown in the wind and germinating spontaneously is a whole different issue, one in which, in fact, the original owner of the blown seed and/or Monsanto would be liable for damages to the land owner where the seed germinated, which would explain why Monsanto sues those victims so aggressively. It’s preemptive, see? The b@stards.

  179. Monsanto is saying (by contract) that purchasers of its seed may “copy” once, and then sell without restriction only to places where the seed will presumptively be consumed rather than replanted.

    Purchased.

    Hence exhaustion.

    Hence no ability to control what will happen subsequent (consume or replant).

    That is why the question asked by Monsanot completely avoids the use of the word “sold” or “exhaustion.”

    Look at the shiny item in my hand, look at teh puff of smoke and hear the load flash…

    which (if you think about it) would make their patent completely pointless.

    Actually no. You could have it reproduce the single time and yield a crop. Which would be exactly on point to what they actually sell.

  180. Great, then there’s no infringer and there are no damages.

    Clearly, “Great, then there’s no infringer and there are no damages.

    This is yet another topic that IANAE/Non Sequitur II feels compelled to discuss while having no clue as to what he is discussing.

  181. Just because you buy a CD from the store, doesn’t mean that you have to pay the artist or the studio the second time the CD is sold used for their intellectual property.

    No, but it does mean you can’t make copies of the intellectual property without permission. Even if they don’t put in a “terminator gene” in the form of copy protection software or whatever.

    Monsanto made their money on the first batch of seeds sold. If they don’t want a second generation, then they need to have the terminator gene put in them to make the seeds sterile.

    Monsanto is saying (by contract) that purchasers of its seed may “copy” once, and then sell without restriction only to places where the seed will presumptively be consumed rather than replanted.

    If you start making unauthorized copies by planting the seeds in soil in neat little rows and watering and fertilizing them, you should very much expect to be sued. Even if other people happen to find the seed growing on their land through no fault of their own. Their innocence is not a defense to your infringement. Nor is the fact that Monsanto didn’t make infringement biologically impossible, which (if you think about it) would make their patent completely pointless.

    would that child then be prohibited from having a child 18 years later because those expressed genes would be sent to the next generation?

    If you could somehow get an enforceable patent on “expressing the gene of SEQ ID NO. 1”, then good luck to you. If the claim is to an isolated nucleotide sequence, you won’t infringe by having a child.

  182. OK, I can see Monsanto’s case about patents continuing forward. But I also kinda feel that first sale doctrine kicks in…Just because you buy a CD from the store, doesn’t mean that you have to pay the artist or the studio the second time the CD is sold used for their intellectual property. Monsanto made their money on the first batch of seeds sold. If they don’t want a second generation, then they need to have the terminator gene put in them to make the seeds sterile. I can see though that since the gene is still expressed in future generations that it would be a violation.

    But to me, with that logic, if you were to have a kid and you wanted to cure a specific genetic disease with gene therapy, would that child then be prohibited from having a child 18 years later because those expressed genes would be sent to the next generation?

  183. They are self-replicating without special human intervention.

    Great, then there’s no infringer and there are no damages.

    Tell me, what happens if you have a tree in your yard that happens to grow in the shape of a patented device all by itself? Do you expect to be liable for patent infringement? Why or why not?

    If you then build a factory in your yard and manufacture the same device, do you expect the result to be any different? What if the devices in your factory were each an exact copy of a device you bought free and clear from the patentee? What if the factory machinery were fully automated so that it kept spitting out device after device as long as you kept it supplied with the necessary raw materials?

    What if you take one of your devices and throw it on someone else’s lawn? Do you expect him to be liable? What if you build the factory on his lawn while he’s on vacation?

  184. I don’t think you are aware of how Monsanto seed works. Have you checked out the effects of it in international farms, Mexico, Africa, France? Farmers have no intention of using Monsanto seed, and I’m sure aren’t spraying anything special and specific to Monsanto, yet Monsanto seed ends up growing in their farms. They are self-replicating without special human intervention. Undoubtedly the same is happening on American farms.

    You have separated yourself from the reality of the situation.

  185. If you can contain your flippant attitude, you might be of some use.

    If a person has a product, and a patent on that product, and they sell you the product, isn’t the patent exhausted? It appears that you are saying that a patent holder can sell, sell sell, and turn around and say, but you cannot use (or basically have) what I sold you because I still have a patent on it.

    This is an absolute evisceration of the patent exhaustion doctrine.

    I think the attempted sale and concurrent licensing is a sham. If you can explain this, that would be helpful. Your mere statements are not.

    I don’t know what line of work exists that allows this (and I am not crossing borders, so territorial exhaustion is not on point).

  186. perhaps you can explain how something is sold and licensed at the same time.

    One thing (product) is sold. A different thing (patent) is licensed. Like I said two hours ago.

    What does “sale” mean, if that sale does not include the ability to use as one sees fit?

    It means somebody has a patent that covers the product you bought. Pretty basic stuff, that. Happens all the time. In my line of work, anyway.

  187. The purchase and use limitations associated with seed are specifically governed by a limited license addressing each and contained in the MTSA.

  188. If you have had this conversation before then perhaps you can explain how something is sold and licensed at the same time. Can something be sold and NOT licensed? What does “sale” mean, if that sale does not include the ability to use as one sees fit? Is the sale a sham?

  189. So it appears that the seeds are not sold, but only licensed.

    The seeds are sold. The patent is licensed.

    I feel like I’ve had this conversation before.

  190. So it appears that the seeds are not sold, but only licensed.

    The license covers the proginey as well.

    Who can comment on the aspects of sham licensing?

    It appears that the “license” to the seed is a sham, as their is no control or possible return of the actual initial seed as there would be with a true licensed item (like a software disk).

    From Snook v London & West Riding Investments:

    “It is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create”.

    Would efficient breach, then be in order. The breached party made whole by the return of the original seed. The breaching party keeps the progeny.

  191. Merely FYI, Monsanto seeds are “sold” under the terms of an agreement entitled “Monsanto Technology/Stewardship Agreement” (MTSA).

    Enter the title in a search engine and you will quickly locate a PDF copy for 2012.

  192. Whether the Federal Circuit correctly ruled that Monsanto’s patent rights in biotechnology related to genetically modified plants (here, patented technologies that make soybeans resistant to glyphosate-based herbicides) are independently applicable to each generation of soybeans embodying the invention, such that a grower who, without authorization from Monsanto, creates a new generation of genetically modified soybeans infringes Monsanto’s patents.

    Isn’t it odd that there is no mention of “sale” or “exhaustion” in this question? Did Monsanto sell the seed or not? When you sell something that has the potential for self replication, shouldn’t you get your money’s worth at the on epoint in time of the sale? Maybe Monsanto should file a business method patent of self-replicating sales.

    What would happen if the farmer bought a seed. Planted it. Harvested the bountiful crop and gave a seed back, making the seed seller whole, and then keeping and using the rest of the seed harvest for himself? How could the seed seller complain? He has been made whole. He has his seed back. The seller did not sell a seed harvest, he only sold a seed.

    Wouldn’t a better parallel case in the technical world be the “sale” of a program disk for a single use (generation), but you have to pay AGAIN for any subsequent use (new generation)?

  193. When movies “self-replicate” like that, there are often criminal charges that are involved.

    Let’s give more power to patent holders!

  194. or likes to make inane arguments.

    He can’t help it. It’s a self-replicating feature of his.

  195. Meh that would be a better case for the petitioner to get to do what he was doing but it wouldn’t be a good case to test whether the exhaustion doctrine trumps contractual concerns or, in the alternative, whether a breach of contract automatically makes you liable for infringement because you magically lost the exhaustion. It most mo fin’ certainly does not mean that they should carve out self-reproducing products from the normal exhaustion doctrine.

    Because let me be clear, it is pretty apparent that the only thing going on in this case is a breach of contract. Your exhaustion defense does not magically go away if you should, at some later date, breach a contract you entered into at the time of purchase. And any lawlyer, or court, that doesn’t see that is a beggin for the supremes to oversay them in short order.

    In any event, I tire of this simplistic subject. I will allow you a final say for anything you haven’t said.

  196. And the only solution is a toughie, petitioning the supremes.

    I think this is just the sort of case they’d want to hear, but you’d have a better chance of getting their attention in a clear case of patented seed blowing onto the field of a farmer who had never heard of glyphosate.

  197. “but you still run into problems once you start using it to make more.”

    Yeah, I know. That problem is the CAFC. And the only solution is a toughie, petitioning the supremes.

  198. Wow is that some of the most tortured logic I’ve ever seen. IANAE must be completely unfamiliar with basic botany or likes to make inane arguments.

    I’m guessing a little of both, i.e. has never gardened or taken a botany class in his life and knows that comparing taking a mold of a mechanical part to self-replicating seeds is a false comparison.

  199. Although I am not sure if “self replicating” is the appropriate term, there was an interestingly similar issue in the damage assertion in Eolas v. Microsoft (Fed. Cir. 2005) re the many copies made [in China] from a single CD “golden master” exported to China.

  200. The CAFC is carving out a special rule for these products as opposed to the general population of products.

    That’s why we don’t leave the CAFC in charge.

    Just like my mechanical part example (or self-copying software, if that’s still patentable at all), the patent is exhausted with respect to your use or resale of that article, but you still run into problems once you start using it to make more.

  201. “Define it however you like. It’s simply not relevant to the infringement analysis. Farmers grow things on purpose that would not otherwise grow. That’s what agriculture is.”

    Don’t tell me, tell it to the USSC bro.

    “you have made an infringing article. ”

    Nobody is arguing that you didn’t infringe or “make an infringing article”. They’re arguing that your sht (your patent right to exclude) was exhausted. That is, as I understand it, an affirmative defense.

    link to en.wikipedia.org

    Recall upon your Quanta.

    Note, IANAE, something that seems to pass you blissfully by. The CAFC is carving out a special rule for these products as opposed to the general population of products. The Quanta decision was pretty clear and how the CAFC thinks to sidestep it is as of yet unknown to me. I haven’t read that decision just yet. However, I will be tens of dollars to single doughnuts that there will be substantial lawlyer tomtrickery involved as the CAFC tries to prop up Monsanto’s business model. Just as courts across the land seem want to do, forever.

  202. fish “wherein” clauses would have been rejected under 112

    Which claims reciting “wherein” clauses are invalid “nder 112” and which one’s aren’t, fishwich? Patent prosecutors would love to know.

    A cite would be nice, too. Especially one in which a claim with a wherein clause similar to the wherein clause in Prometheus’ claims was “rejected under 112.”

  203. I suppose you’re just going to take it upon yourself to redefine what it means to be self-replicating to support your thesis eh?

    Define it however you like. It’s simply not relevant to the infringement analysis. Farmers grow things on purpose that would not otherwise grow. That’s what agriculture is.

    If you plant seed, select for infringing seed, and re-plant next-generation seed, you have made an infringing article. Whether or not other conditions could have existed to create an infringing article without your intervention.

  204. “If you have to actively make it self-replicate”

    Lolwut?

    link to en.wikipedia.org

    I suppose you’re just going to take it upon yourself to redefine what it means to be self-replicating to support your thesis eh? Common lawltard tactic. But it will not avail you in the USSC. They see through it like every single time.

  205. If you want to talk self-replication then we really do need to talk about self-replication bro.

    If you have to actively make it self-replicate, that’s not self-replication. Whether it’s alive or not.

  206. “It did, via an intermediate generation having a different form. Just like plants do.”

    I lulzed. Great that you managed to “abstract out” what this particular “intermediate generation” is in each case. In one case it is manufacturing a new product using an old one as your guide. In the other case it is planting some seeds and letting them replicate on their own.

    If you want a real analogy to the technological arts, let us use self-replicating nano-bots. You buy one, let it go in a clump of metal and it builds more of itself. Does the company get to sue the person that bought a self-replicating nano bot when it starts replicating? Such is rtarded.

    If you want to talk self-replication then we really do need to talk about self-replication bro. Not external “replication” aka not self-replication.

  207. Really, a new auto part sprang forth from the old part?

    Read the facts again. It did, via an intermediate generation having a different form. Just like plants do. The new parts would not have existed had the old part not been available for reproduction.

    If an article truly self-replicates without human intervention, there is no infringement because there is no infringer. Exhaustion is irrelevant. If an article creates more of itself with human intervention, what difference does it make what kind or extent of human intervention is required?

  208. There was no human actor in those circumstances, no deliberate action.

    Not even spraying glyphosate and saving seed?

    How did those cases go for Monsanto?

  209. The seeds only create more seeds when a farmer deliberately plants them under conditions that the farmer deliberately regulates with the express purpose of creating more seeds.

    There is a fallacy with this proposition – that an actor must choose to act.

    Seeral of the actual cases of infringement involve nature alone at work, blowing seeds from one field into a next. There was no human actor in those circumstances, no deliberate action.

  210. Supreme Court essentially ignored Government’s brief in Prometheus (unfortunately IMO)

    Because everybody would be jumping up and down and cheering if the Supreme Court had said that mental steps must be ignored when determining validity under 102/103.

    LOL.

  211. “The seeds only create more seeds when a farmer deliberately plants them under conditions that the farmer deliberately regulates with the express purpose of creating more seeds.”

    Sooooo… then… self-replicating?

    “Including, in this case, spraying with glyphosate to make sure that only the patented ones survive.”

    But in other cases not bothering right?

    “What if you legally purchased a patented mechanical part, and then used that part to make a mold, which you then used to manufacture and sell more identical parts? ”

    Was the part self-replicating? You seem to have left that part out of your analysis. I’ll presume it isn’t so no, no exhaustion.

    “But the part self-replicated as soon as you provided the right conditions!”

    Really, a new auto part sprang forth from the old part? I don’t think so bro.

  212. self-replicating technologies

    Let’s be clear on what we mean by self-replicating. These seeds don’t reproduce on their own while they sit in the grain elevator or otherwise in storage. That, I think we can all agree, would be exhausting.

    The seeds only create more seeds when a farmer deliberately plants them under conditions that the farmer deliberately regulates with the express purpose of creating more seeds. Including, in this case, spraying with glyphosate to make sure that only the patented ones survive.

    What if you legally purchased a patented mechanical part, and then used that part to make a mold, which you then used to manufacture and sell more identical parts? Exhaustion? But the part self-replicated as soon as you provided the right conditions!

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