By Dennis Crouch
Bowman v. Monsanto Company (SCOTUS 2013) Transcript
The Supreme Court heard oral arguments today in the patent exhaustion case involving Monsanto's glyphosate-resistant soybeans. Acting in a pro bono basis, Mark Walters represented Mr. Bowman, the Indiana farmer accused of patent infringement. Decidedly not pro bono, Seth Waxman represented Monsanto, and Melissa Arbus Sherry spoke on behalf of the US Government.
My expectation here is that the court will side with Monsanto and find that a sale of patents seeds does not exhaust the patent rights as to progeny seeds that are grown. I will not be surprised if that result is 9-0. I suspect that there will also be a concurring opinion arguing that the Federal Circuit's conditional sale doctrine is bad law and that restrictions on the use of personal property do not normally bind subsequent purchasers who are not privy to that restriction agreement – regardless of whether the personal property is covered by a patent right.
= = = = =
There are two major questions at stake: (1) what is the scope of patent exhaustion for goods that are naturally self-reproducing; and (2) to what extent do use restrictions placed on a licensed grower (or manufacturer) persist as servitudes that create potential liability for downstream purchasers.
Everyone agrees that the first authorized and unrestricted sale of a patented article exhausts the patent rights in that particular article and allows the purchaser to use and sell the article without fear of patent liability. Bowman argues that, for seeds, this right to use includes the right to sow the seeds and use the harvest. Under Bowman's construct, once a seed is sold without restriction, the patent rights are exhausted to that seed and to its generations of progeny. Bowman's argument also relies upon the disputed assumption that the patent rights covering the initial seeds he purchased were actually exhausted. Monsanto has kept tight control over its product throughout the years and always requires farmers who want to plant its seeds to sign a technology licensing agreement. That agreement includes a promise not to save and replant seeds. Monsanto has argued that use restriction (or license limitation) is binding on subsequent purchasers – even those who purchase the seeds in a fungible commodity market without agreeing to any restriction. Thus, for Bowman to win, the court needs to find (1) that the rights in the original seeds were exhausted by the time Bowman purchased them from the commodity market and (2) that the exhaustion applies to all future progeny of the seeds. So far, the courts have sided with Monsanto.
Out of the gate, a plurality of justices appeared concerned about the policy implications of a decision in favor of Bowman.
Chief Justice Roberts: Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?
There are several ways to answer this question: (1) an innovator could use contract law to ensure a better market structure; (2) patent rights are rarely sufficient alone to ensure profit; and (3) that soybeans are not really fungible in the way that you might think. The Court already knew the first two answers wanted to explore the third.
Mr. Walters: [S}eed that's available at a grain elevator is not a very good source of seed and farmers are not going to be able to eliminate the need to go to Monsanto or the other seed companies every year by going to the grain elevator. . . . Taking our example here where — where Petitioner bought commodity seeds, it's an undifferentiated mixture, it can't be overemphasized how different every single seed is, you don't know a Monsanto from a Pioneer from an Asgrow. You don't know the maturity rate. If I am a farmer, I need a particular maturity bean for my field because I don't want it to mature before it gets high enough for the combine to come around and cut it.
So you want to be able to have — you have all these things dialed in, these different variabilities. So if you go to the grain elevator and you don't know what exactly it is that you want and you just get a mixture, that's not going to be real -competitive at all to Monsanto's first generation seed. Now, the possibility of somebody selecting one and saying, ah, that's the exact one that I need for my field, I'm going to cultivate that and let it grow into enough seeds so I can plant my first crop, that would take a number of years to grow a 1,000-acre farm, and it's not — and by that time, farmers — the nature would have changed and evolved where you would want the latest disease resistance by that point….
Justice Scalia: Some of them would — would grow at different rates than others.
Mr. Walters: Absolutely. . . .
Justice Scalia: The original batch that he buys from Monsanto, in addition to being resistant to the chemical that kills the weeds, in addition to that, they all mature at the same rate.
Mr. Walters: Exactly. They're a uniform variety. They are exactly what a farmer needs …
Justice Scalia: So all the Monsanto seeds are not — are not fungible.
In addition to these elements, both Ms. Arbus Sherry and Mr. Waxman explained that the seed lines are additionally protected by PVPA certificates and that grain elevators are sales are prohibited by state and federal law from labeling its commodity goods as seed.
On the actual law of exhaustion Mr. Walters did not appear to fare so well.
Justice Sotomayor: I'm sorry. The Exhaustion Doctrine permits you to use the good that you buy. It never permits you to make another item from that item you bought. So that's what I think Justice Breyer is saying, which is you can use the seed, you can plant it, but what you can't do is use its progeny unless you are licensed to, because its progeny is a new item.
Mr. Walters: This is obviously a brand-new case where we're dealing with the — the doctrine of patent exhaustion in the context of self-replicating technologies.
It was around this point that Justice Breyer gave his best one-liner of the day, declaring that "three generations of seeds is enough." (see Buck v. Bell).
The government's Ms. Arbus Sherry began her discussion with a somewhat disingenuous parade of horribles that was quickly countered by Justice Scalia his is well known for his parades.
Ms. Arbus Sherry: If the concept is the sale of a parent plant exhausts the patentholder's rights not only with respect to that seed but with respect to all the progeny seed, we would have to go all the way back to the very first Roundup Ready plant that was created as part of the transformation event. Every single Roundup Ready seed in existence today is the progeny of that one parent plant and, as Your Honor pointed out, that would eviscerate patent protections. There would be no incentive to invest, not just in Roundup Ready soybeans or not even agricultural technology, but it's quite a bit broader than that.
In order to encourage investment, the Patent Act provides 20 years of exclusivity. This would be reducing the 20-year term to essentially one and only sale. It would be near impossible to recoup your investments with that first sale and so the more likely consequence is that research dollars would be put elsewhere.
Justice Scalia: That's a pretty horrible result, but let me give you another horrible result, and that is if — if we agree with you, farmers will not be able to do a second planting by simply getting the undifferentiated seeds from a grain elevator, because at least a few of those seeds will always be patented seeds, and no farmer could ever plant anything from a grain elevator, which means — I gather they use it for second plantings where the risks are so high that it doesn't pay to buy expensive seed. Now they can't do that any more because there's practically no grain elevator that doesn't have at least one patented seed in it.
Ms. Arbus Sherry: And the answer to that is this is actually not a traditional farming practice. Despite what Petitioner says, farmers do not generally go to grain elevators, buy commingled grain, plant it in the ground as seed.
Mr. Waxman's performance appears to be a tour-de-force, although he did not push for affirmance of the Federal Circuit's conditional sale doctrine. The one area where the court focused attention was on innocent infringement.
Justice Kagan: Mr. Waxman, there is a worrisome thing on the other side, though, too. And that is the Bureau position has the — has the capacity to make infringers out of everybody. And that is highlighted actually in this case by how successful this product is and how large a percentage of the market it has had.
So that — you know, seeds can be blown onto a farmer's farm by wind, and all of a sudden you have RoundUp seeds there and the farmer is infringing, or there's a 10-year-old who wants to do a science project of creating a soybean plant, and he goes to the supermarket and gets an edamame, and it turns out that it's Roundup seeds.
And, you know, these Roundup seeds are everywhere, it seems to me. There's, what, 90 percent of all the seeds that are around? So it seems as though — like pretty much everybody is an infringer at this point, aren't they?
Mr. Waxman: …Your point about the ubiquity of Roundup Ready's use is a fair one. I mean, this is probably the most rapidly adopted technological advance in history. The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States.
But size — that is, success — has never been thought and can't be thought to affect the contour of patent rights. You may very — with soybeans, the problem of blowing seed is not an issue for soybeans. Soybeans don't — I mean, it would take Hurricane Sandy to blow a soybean into some other farmer's field. And soybeans, in any event, are — you know, have perfect flowers; that is, they contain both the pollen and the stamen, so that they — which is the reason that they breed free and true, unlike, for example, corn.
The point that there may be many farmers with respect to other crops like alfalfa that may have some inadvertent Roundup Ready alfalfa in their fields may be true, although it's — it is not well documented. There would be inadvertent infringement if the farmer was cultivating a patented crop, but there would be no enforcement of that.
The farmer wouldn't know, Monsanto wouldn't know, and in any event, the damages would be zero because you would ask what the reasonable royalty would be, and if the farmer doesn't want Roundup Ready technology and isn't using Roundup Ready technology to save costs and increase productivity, the — the royalty value would be zero. …
Justice Breyer: And some of the self-replicating items, which are infringing items, end up inadvertently all over the place. Is there anything — is there precautions that you take? I mean, is there anything in patent law that helps?
Mr. Waxman: So infringement is — unlike contributory infringement or induced infringement, the act of infringement, that is a violation of Section 271 is a strict liability tort, but it requires affirmative volitional contact -conduct. That is, it's not that — a thing doesn't infringe; a person infringes. …
Justice Breyer: But you're just saying that would need a modification in patent law.
Mr. Waxman: Of course.
We can expect a decision by June.
Not sure I understand what you are trying to say NSII.
“Then I stain your shirt”
Was there a sale on straw yesterday?
A fire sale?
“do I have the right to clone the dog and sell the clones?”
Nice strawman. Sort of like the screwdriver example – take a position that no one is arguing and knock it down.
I think I understand the love of the Lone Ranger series for these two.
Every episode features lots of dust-kicking.
“I have made the argument”
You have attempted to make the argument.
You failed badly.
One of those things where your inconsistency with following the Supreme Court is rather glaring.
“we can analyze that claim after you draft it”
Unless of course, it is 101 Integration Expert that asks you to analyze a claim according the the USPTO guidelines post-Prometheus that, (ahem) you Malcolm were the very first to link to.
That analysis is simply too embarrassing for you to do, evidently.
non Sequitur II: If I understand your position correctly, you would consider the follow sequence of steps to be patentable subject matter:
1. Add x + y.
2. Divide the result by 4.
101 Integration Expert
No. Disembodied math is a Court created exception.
What you do not understand is the law or you would not have written such a response in the first place.
A process for planting seeds.
A process for programing computers.
A process for conducting business.
If new and useful, ALL are patent eligible subject matter and you have no law that says otherwise.
I think I understand the basis of your analogy now. You seem to be working under the belief that all steps are created equal. To me, it is quite clear that the step of physically putting a bean in the ground is different in character from the step of performing a discrete cosine transform, for example.
If I understand your position correctly, you would consider the follow sequence of steps to be patentable subject matter:
1. Add x + y.
2. Divide the result by 4.
“wheels come off the Ned-Make-Up-Law wagon?”
LOL Now that is a instant classic.
Non Sequitur II:”IIt seems that you are starting from the position that any sequence of steps is patentable subject matter, which seems to me like a really broad rule.”
It’s not just a rule. It’s the law and yes it is very broad.
Please see the following statute”
35 U.S.C. 100 Definitions.
When used in this title unless the context otherwise indicates –
(b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
35 U.S.C. § 101 35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Now, what you must understand is that the Supreme Court has interpreted the statute to have only two very limited exceptions;
Law of Nature/Natural Phenomena and Abstract Ideas.
The purpose of the judicial exceptions is to prevent foreclosing the use of the exceptions for future innovation.
The process of planting seeds reduced to a series of steps/acts is not one of the Court created judicial exceptions. Likewise a process of programming a computer, or a process of conducting business e.g licensing seeds to a farmer, is not a Court created judicial exception.
Now here is were it gets tricky for novices and exploitable by the intellectually dishonest.
You are allowed to foreclose others from the use of your process reduced to a series of steps or acts, as long as the steps do not keep others from using a judicial exception to create an altogether different process.
And thats the law.
Any questions?
I am here to help.
Ned Heller: “Anon, there is no other test anyone has come up with to date.”
Ned this is not correct.
There is the Diehr Concept & Application Test ( DCAT) used in Diamond v Diehr and later adapted in Mayo v Prometheus as Integration.
Integration, while not a bright line test, is no less a Court sanctioned and PTO recognized analysis for determining patent eligible subject matter.
Where on this planet does a seed make a plant? A seed becomes a plant, but does not make a plant.
That would be a great counter-argument, Hans, if I had argued that a seed makes a plant. But I didn’t.
Assuming that we are talking about the same passage of Prometheus , I interpreted it as punting the question of sufficiency of the MOT. SCOTUS pointed out that they have never said whether or the not the MOT was sufficient, but that it didn’t matter because the Prometheus claims failed.
Ned,
Your post at 7:42 is not responsive.
Are you mutinying against what the Supreme Court has explicitly said?
(It matters not that they have not replaced MoT – not in the least!)
That was not the Supremes, that was the 6-Of-Course-That’s-Abstract test.
Don’t you just love it when the wheels come off the Ned-Make-Up-Law wagon?
“product must exist prior to the invention. The exception really is a form of prior art.”
Now Ned – see Chakrabarty – and you are being mutinous now.
And by the way – the Supreme Court itslef has TOLD you wher they get their implicit authority (hint: it’s not 102 or 103).
Whatever happened to your obey the Surpremes strictness that you would apply to Rader?
Which side of your face is speaking now?
“in the exact form that is claimed”
“Exact” has never been required.
The “orthodox” word you meant to use was “effectively.”
Even Leopold knows that.
“if the real problem is with the product of nature exception is not prior art”
This has long been put forth and explained. The product of nature exception is a 101 exception. It has no element of “prior” to it. It simply is not a 102/103 exception. See Chakrabarty.
“you win. Draft the injunction, please.”
Ned, this (simple) question was put to Malcolm a LONG, LONG time ago. Not only has he NEVER answered it, he even attemtped to co-opt the question and use it as his argument.
And yes – this is archived.
And this is precisely the c_rrp we get fromlow quality blogging that allows people to post WHATEVER with no accountability to answer valid poitns raised, to kick up dust and run away from the issues, and then repeatedly return and post the same c_rrp.
Some will simply [shrug] and stand by.
Lester if you wish to learn at my knee then you may send me an email, and I will set you a time for an appointment. You must come ready to st fu and learn, and most decidedly not ready to try to argue with me about the 101 principles recently re-enunciated by the supremes that I first introduced onto these boards.
“According to the court, all that is needed is that it preempt something”
Something which has been judicially excepted ya ta rd. There are three excepted things, think you can name them baby lester jester?
“The Supreme court says claims are abstract when they preempt something.”
Go d you are dum.
It’s better than the typical “WHATEV” theory.
Uhoh – into the fetus land – we can’t have that discussion here, because, well, fetus is merely “property,” and does not “make” anything, does it?
D_@mm intrusive government messing with our DNA again….
So is the word “use”
And when the purpose of the “use” is “make,” and you sold the item for that “use,” that’s called “patent exhaustion.”
Way too much is being made of the artificial separation of make from use – especially in this context and especially with this invention.
You post is without a point.
No one brings suit against an inanimate object.
At least try, Malcolm.
Anon, there is no other test anyone has come up with to date.
“IANAE, what makes you think that when your patented dog got pregnant and gave birth that YOU had something to do with it?”
Easily, the scariest question of the day.
“use it for its patented purpose.”
It is absolutely amazing how far and wide the patent intelligensia is NOT picking up on this critical distinction (and how Bowman’s consel should be flayed for missing this).
Oh well, I heard the clerks of the Supreme Court read this blog and that they may actually be interested in this critical point.
There’s always hope.
Mr. Farmer, I read about the case. Here is a link
link to en.wikipedia.org
What is apparent is this:
1. Canada does not have a well develop law on exhaustion.
2. Canadian direct patent infringement requires knowledge of the infringement for liability. That is not required in the US or for that matter anywhere else in the world.
3. Monsanto's contamination of Schmeirser crop made the further use of his own uniquely developed canola brand impossible because he now knew his field contained contamination. It took him 50 years to develop that brand.
4. Any fair observer would find the result unjust, as Schmeiser obtained no advantage from the contamination, but lost his own unique brand. I would think the Schmeiser has a legitimate cause of action again Monsanto for what it did to Schmeiser.
5. The Prime Minister of Canada should have intervened on behalf of Schmeiser in some fashion and ordered the a review of the patent laws to end the abuse by Monsanto.
What a fricken hero that man was.
“The MOT is the real test.”
Canard ALERT.
(sigh)
Bilski: MoT not required.
Prometheus” MoT not sufficient.
Ned, Are you mutinying against what the Supreme Court has explicitly said?
Prediction: There will be no meaningful answer from Malcolm to this question.
By meaningful, I mean that the phrase does not add meaningfully to any conversation.
My second Prediction: There will never be any accountability on this blog for the types of comments that are Malcolm’s stock in trade.
C’est la vie.
I would reply with a [shrug] and stand by, but that’s already been done (and done to far more substantial complaints of poor quality).
oh wait…
1) – my “free” in context is simply not how you are trying to spin it here. No surprise, as you feel that all facts should be spun.
2) – my comment on “sex” and procreation is also being mis-spun. Clearly.
3) – my read on Prometheus is dead on accurte, while you continue to piddle away with a theory only agreed to by the little circle (and you still don’t seem to get the irony of beingthe first to post to the USPTO link on what the Prometheus case means) – Absolutely hilarious in your self-defeat and reality-denyig modes.
4) multiple monikers has NEVER been a quality problem on par with the quality problems that I have discussed, never mind the fact that you were one of the first to employ that tactic 9and lied about it).
5) the review and protection of staff from illicit and unsolicited email is also being spun to hide the guilty and where the real unethical behavior is in such a situation. You have repeatedly misrepresented what I posted, and you continue to dodge counter points I raise. Do you employ ethical screens in your firm? Would such a screen be defeated by a surreptious mailing of a certified letter with information that would violate the ethical screen?
These may be “off the top of your head,” but each have critical failings in your logic.
Now, if you want to discuss real issues, use the archive function and return tot he lessons I gave you that you merely [shrugged] and stood by.
Or come to grips with your blatant lies on configured is structure and the controlling law of the exceptions to the printed matter doctrine, or even return and answer questions squarely in your court, like how do you distinguish claim infringement if you are allowed to patent a product of nature and you accuse someone of having somethign they freely picked out of the warehouse of nature (and free to all).
Your duplicity is well documented Malcolm. You really do not want a trial on the facts. Especially in comparison to me. You would lose – and lose badly.
Tell that to the music companies Malcolm.
If that were true, you would have to shoot some old ladies.
(It’s the fallacy of electronic copies are free, so where is the harm?)
Mr. farmer;
Thanks for the post.
Monsanto is on it way to being the most reviled corporation in the world. Well on its way.
I can only hope the Supreme Court wakes up to whats really afoot here.
Malcolm, if Monsanto wins, it wil be fine with me. But does a human fetus “make” a human? You think I’m just being clever, fine, but it’s kind of a big deal to Monsanto (in case you haven’t heard).
Just, I agree.
The origin of “preemption” is Morse. (Richard Stern, the author of the government brief in Benson, has explained that the government lawyers originally wanted to rely exclusively on Morse. They later also put forward the MOT.)
But if you read Morse, it actually says this:
1. A principle in the abstract, like a Law of Nature or a Natural Phenomena, cannot be patented.
2. The Morse court explains, discussing Nielson, that patents are granted for inventive applications of principles.
3. They then observe that if one were to allow patents on the principle divorced from any practical application, the claim would cover all practical applications and retard the progress in the useful arts.
Thus, the preemption is a consequence of granting patents on principles. It is not really a test for when a claim is directed to a principle or an inventive application.
Morse does instruct the viewer to look to whether the claim is directed to a practical application. The MOT is the real test.
You might look up Monsanto’s suit against the Canadian farmer named Schmeiser. He used no GMO seed for planting canola and used no Roundup to spray on his canola. He did have RR canola in his crop because of cross pollenation with his neighbors fields. Monsanto knew or should have known this was the case. They sued him anyway and cost the farmer around 400K in legal fees. Why did Monsanto sue the East coast dairy for labeling their milk hormane free? Monsanto has a habit of trying to keep all the farmers in line by bullying tactics. The worst offence will end up being corn. It’s pollen moved a considerable distance. I know first hand that non-GMO corn can’t be grown in my area. It all cross pollenates.
Agreed, and I would add that the product must exist prior to the invention. The exception really is a form of prior art.
Re: product of nature definition, I tend to agree with your definition. I might add, that the product of nature must also exist before the discovery or invention. It, to me, really is a form of prior art.
Non Sequitur II, would that you were right.
I have made the argument that there really is no Product of Nature exception. But there is Chakrabarty.
MM, the point is that from the beginning of law, certain things flow from ownership. It is you, the owner that holds the bundle of exclusive rights, not someone else.
If I own a dog and it has pups, I own the pups. If some Monsanto secret police were to break down the door of my home and take the pups from me and their mother because of Monsanto v. Bowman, there will be h * ll to pay. People will not stand for it.
This case is being argued in the Supreme Court by kicking as much mud on Bowman as possible. He is being portrayed as a thief, a pirate. But the principle involved in pinning liability on him has broad scope and predictable, and very ugly consequences.
Trust me, there already is a revolution under way against Monsanto. Bowman may be an unintended hero in this revolt. But the revolutionaries here are right.
I screwed up the tags. Here are the last couple paragraphs:
For patent ineligibility purposes, I’d say it’s a composition in the exact form that is claimed, which is in fact produced (not which is capable of being produced, but which is produced) by random processes (i.e., processes devoid of human intent).
I may need to caveat that further if something I havent considered comes up but that’s what comes to mind as a reasonable, workable definition.
Assume, for example, you discovered that dark clouds caused favorable growth in a particular bovine hormone that might be useful to cure cancer in humans.
You can’t patent that. It’s just a fact you discovered.
If you want to claim a novel and non-obvious process that applies the fact, we can analyze that claim after you draft it.
if the real problem is with the product of nature exception is not prior art, but lies instead in the reach of man to effectively control mother nature
There’s nothing “natural” about recombinant beans that didn’t exist until someone isolated a gene from a bacterium and shot the gene into the germ tissue of a plant using a microscopic gun and then selected for stably reproducing beans. At least, there’s nothing more or less “natural” than any other new composition of matter which we allow inventors to “control” for a couple decades.
What, MM, is a product of nature?
For patent ineligibility purposes, I’d say it’s a composition in the exact form that is claimed, which is produced (not which is capable/i> of being produced, but which is produced) by random processes (i.e., processes devoid of human intent).
I may need to caveat that further if something I havent considered comes up but that’s what comes to mind as a reasonable, workable definition.
The 101 exception is “law of nature” and not “product of nature”.
Well played, MM.
Malcolm, my favorite Lone Ranger episode is where the farmer calls the Lone Ranger because the found the Monsanto detectives trespassing in his field. The Lone Ranger approaches the Monsanto detectives and warns them that they are trespassing on private property. They hand the Lone Ranger a copy of the Supreme Court decision in Monsanto v. Bowman, and tell the ranger that they have reason to believe that the farmer is growing patented plants and that it is the farmer, not they, who are trespassing on Monsanto’s rights.
Whereupon, not knowing who is right, Tonto attempts to arrest the farmer and the Lone Ranger attempts to arrest the Monsanto detectives. A firefight ensues, as everyone in Texas is armed to the teeth, and both the farmer and the Monsanto detectives end up in jail for resisting arrest.
Farmers have a right to save seed and replant. This is a right they have always had, from time immemorial. It is SOP for most farmers in the world.
This right is like the right everyone has against a patent owner to use his property and to sell it. You own a dog. That means, IANAE, that you can breed it. It is your fricken dog. Mein Gott. This is basic stuff.
If I buy a patented dog, do I have the right to clone the dog and sell the clones? I’m trying to figure out what exactly is driving you up the wall, Ned.
People adopt spayed and neutered animals by the millions every year. Pet sex really isn’t a dealbreaker for most people.
Where on this planet does a seed make a plant? A seed becomes a plant, but does not make a plant.
You’re going into the weeds now.
I think you skipped a step in concluding that “the same logic for the process of planting seeds being patent eligible subject matter can be applied to programing computers and methods of conducting business.”
It seems like you are crafting a broad rule that encompasses both software and planting seeds. That is not the correct analytical framework. Instead, you need to show that it is impossible to craft a rule that includes planting seeds that doesn’t also include software. If you are successful, this would show that software is necessarily patentable if planting seeds is patentable.
It seems that you are starting from the position that any sequence of steps is patentable subject matter, which seems to me like a really broad rule.
Also, I’m not sure if you are talking about what the law is or what it should be?
MM, I own a file, I have a right to sell it. I have a right to copy it for backup purposes. I am not so sure that I have a right to both sell it and retain a copy if it is protected by copyright.
I do see the distinction.
However, I create the file so that I own the copyright, I have a legal right to share it. If congress were to pass some law that said I could not, then I would suggest that congress would have then pass a law that could not be enforced. Something like prohibition or any law against recreational drugs.
What, MM, is a product of nature?
You have time and again seem to state that if a product of nature exception exists, it must relate to some preexisting product such that the discoverer of that product might have a problem with the now repealed 102(f).
But, if the real problem is with the product of nature exception is not prior art, but lies instead in the reach of man to effectively control mother nature, then, would you agree a patent that gives you a right to control the uncontrollable is just a bit ridiculous.
Assume, for example, you discovered that dark clouds caused favorable growth in a particular bovine hormone that might be useful to cure cancer in humans. Now, you sue someone using dark clouds with his cattle and you win. Draft the injunction, please.
He Les, that algorithm hardly is a series of mental steps, is it? I think it specifies a specific way of using specific hardware that is so integrated with a machine as to define a new machine or a new machine process.
Clearly eligible under 101 from initial inspection.
Where on this planet does a seed make a plant? A seed becomes a plant, but does not make a plant.
IANAE, what do they have to prove to prove infringement, IANAE? They do not exclude that all they have to prove is that one plant, one seed in a field is infringing for the whole field to be infringing. The Supreme Court was under the definite impression that that was their theory.
You seem to assume that Monsanto has to prove that a field has to be wholly made of the patented gene to prove infringement. Where do you get these ideas?
If all they have to prove is one plant, then they CAN sue every farmer because every farmer will have the patented plant in his field because that is the way nature operates one the patented gene is release into the public domain.
Circling back, just what do you think Monsanto has to prove to prove that a FIELD or CROP is infringing? The SC was told just one seed.
IANAE, I like your retort. You do see the problem.
If the patent owner causes the "infringement," of course their is no infringement in fact.
Now, do you see the problem of releasing the patented gene into the public domain and then suing people for using it regardless of the fact that they knew it was patented?
Monsanto exposed its patented plants to the public domain in any number of ways. The plants in the field spread their genes by wind or pollen. The commodity grain further spreads the genes. Soon, every field has at least one plant with the patented gene, and every farmer infringes.
Now, you say the farmer has to pay if he knows that his field has the patented gene and takes advantage of it by using RR. Really, where in the patent act is it said that using RR is an act of infringement?
Farmers have a right to save seed and replant. This is a right they have always had, from time immemorial. It is SOP for most farmers in the world.
This right is like the right everyone has against a patent owner to use his property and to sell it. You own a dog. That means, IANAE, that you can breed it. It is your fricken dog. Mein Gott. This is basic stuff.
There is something fundamentally wrong with patenting sexually reproduced plants and animals. Fundamentally wrong, and it becomes apparent that trying to protect such inventions is going to involve fundamental changes more than just patent law. We are going to make illegal activity that has long been considered among our fundamental rights.
I can't wait until the ACLU figures this one out.
IANAE, what makes you think that when your patented dog got pregnant and gave birth that YOU had something to do with it?
MM, love those little old lady revolutionairies. During 1789, they were instrumental in taking the Bastille and getting the King and that Austrian b * tch ("Let'm eat cake") out of Versailles and to the capitol. Love the little old ladies. Love them.
“So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter? Yes. See claim 130 of the Monsanto patent, for example.”
Thanks. Just as I thought, the same logic for the process of planting seeds being patent eligible subject matter can be applied to programing computers and methods of conducting business. All of the anti-patent, anti-software/business method madness has tapered off and won’t survive at the Supreme Court level.
Other than the childish name calling, how is this:
“Sorry, here let me put it into ta rd tongue for you, pretty much everyone (aka all soybean farmers) are infringers at this point precisely because they chose to be, OR ARE LICENSING SO THAT THEY ARE NOT INFRINGERS BUT WOULD BE SANS LICENSE.”
any different than this?:
“What the judge meant is, because Monsanto seeds are the only seeds around, everyone who does not want to buy Monsanto seeds would be force to infringe because no other seeds are readily available”
In practical effect, Monsanto’s Patent has preempted soybean farming. Therefore, according to SC logic, Monsanto’s claims are abstract and invalid under 35 USC 101.
The claims, not the decision. The decision was the easiest in the history of patent law. I’m saying that among the various “reasons” the claims were invalid is because infringement would have hinged on whether the actually measured metabolite levels fell within the range set forth in the claims. Same thing for my claim. Infringement cannot hinge on a particular “result” (e.g., you infringe if a person is A/A, A/B, or B/B, but do not infringe if the person is something other than that). Everybody agrees that Bowman can put tiny little “googly eyes” on a commodity seed he purchases and put it on his desk as a pet (I’m thinking of the Christopher Walken skit on SNL “Indoor Gardening Tips From a Man Who’s Very Scared of Plants”). But if he places the seed in some dirt, sprinkles some water on it, and out sprouts a leafy soybean plant, he infringes. Soybeans have been around a long time. The “ability” of a soybean seed to turn into a plant has practically nothing to do with Bowman. Monsanto prevailing (which I FULLY expect to happen) is a problem. Won’t bug me personally or anything.
When is a recombinant bean ineligible under 101?
When it’s a human bean.
Thanks, folks. I’m here all night.
Algorithms are abstract? No, as a class, they are not. A particular algorithm might be described in the abstract, but not all algorithms are not abstract.
For example, this claimed algorithm is very specific and not abstract in the least:
1. A method for controlling processing elements in a multiprocessor architecture to provide improved throughout for Fast Fourier Transform/Inverse Fast Fourier Transform (FFT/IFFT) computations, the method comprising the steps of:
computing, on a multiprocessor architecture including “P” processing elements each butterfly of the first “log2P” stages of an FFT/IFFT on either a single one of the processing elements or on each of the “P” processing elements simultaneously;
distributing the computations of the butterflies in all the subsequent stages of the FFT/IFFT among the “P” processing elements such that each chain of cascaded butterflies consisting of those butterflies that have inputs and outputs connected together is processed by the same processing element to thereby eliminate the need for inter-processor communication among the processing elements after the computation of the first “log2P” stages of the FFT/IFFT;
wherein the distributing of the computation of the butterflies subsequent to the first “log2P” butterflies is achieved by assigning operand addresses of each set of butterfly operands to each processing element in such a manner that the butterfly is processed by the same processing element that computed the connected butterfly of the previous stage in the same chain of butterflies; and
wherein the desired assignment of operand addresses is achieved by deriving the address of the first operand in the operand pair corresponding to the “ith” stage of the computation from the address of the corresponding operand in the previous stage by inserting a “0” in the “(i+1)th” bit position of the address, while the address of the second operand is derived by inserting a “1” in the “(i+1)th” bit position of the operand address.
link to google.com
The Supreme court says claims are abstract when they preempt something.
So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter?
Yes. See claim 130 of the Monsanto patent, for example.
I don’t think statutory subject matter is an issue here, except for a few bizarre assertions that a bean is abstract.
If Bowman plants the seed and it makes a seed that is covered by the claim, then he infringes. But if he plants the seed and it does not make a seed that is covered by the claim, then he does not infringe.
2+2 is still equal to 4.
Word.
Hans: Malcolm, one of the problems with Prometheus was this: what if the level of metabolites detected was outside the range?
I’m not sure if you’re referring to a problem with Prometheus’ claims or with the Supreme Court’s decision. But for the record, there really were no measured metabolite levels that were “outside the range” of Prometheus’ claims. The claims covered thinking about the relationship of the measured levels to the recited “magic levels” regardless of whether the measured levels of metabolites were zero or lethally high.
I discover that a genetic locus, X, has two alleles, A and B. I discover that if you are A/A or A/B, you will get cancer, but if you are B/B, you will not. I obtain a patent claim as follows: Method for predicting susceptibility to cancer comprising determining genotype at locus X, wherein A/A or A/B indicates susceptibility to cancer, and wherein B/B does not. Suppose later it is discovered that there is a third allele, C. If I perform a test to determine a person’s genotype at locus X, and the person is A/C, or B/C, do I infringe?
The correct answer is that your recited claim is ineligible under Prometheus so the infringement question is moot. Let’s assume that Prometheus was decided differently and you can now patent methods of thinking about “correlations” of data obtained using old methods. If you don’t think about the claimed correlation, you don’t infringe. In your hypothetical, you don’t think about the claimed correlation, so you don’t infringe.
Note that if someone shows that C is invariably linked with the presence of A or B and someone can show that you were aware of this fact, then the infringement analysis changes completely. And it’s that kind of ridiculousness that the Supreme Court very wisely laid to rest in a coffin sealed with nine big nails.
Honestly, I don’t see how this has anything to do with the Monsanto case.
CORRECTION: None of the above is a law of nature or physical phenomenon reduced to steps.
“That agreement includes a promise not to save and replant seeds. Monsanto has argued that use restriction (or license limitation) is binding on subsequent purchasers – even those who purchase the seeds in a fungible commodity market without agreeing to any restriction.”
Is a use ( act ) of planting seeds 101 statutory subject matter in the view of the Court?
If so then why wouldn’t all such acts be statutory subject matter from; selling a product , to programming a computer?
Seems they would to me.
They are all processes.
Require a series of steps.
None of the above is a law of nature or abstract idea reduced to steps. And there is certainly nothing abstract about the process of selling a product, programming a computer, or planting seeds when reduced to specific steps.
Of course you can always argue it’s all been done before, or obvious to try, maybe. Then that’s 102 or 103.
And perhaps you can argue some of the steps are not specific enough but then you are getting into 112.
So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter?
Hans Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?
If we’re talking about a composition claim to a Monsanto patented bean/seed, then there is no infringement until the bean is produced (as a direct result of Bowman’s acts).
If Bowman kills the plants before they produce beans, that particular patent is also not infringed by Bowman.
The site’s archive feature can be used to show the many (MANY) times that you claim to not know what “effectively” means when it is convenient for you
More likely, anon, I was simply asking you to provide your definition for the term in the context of an otherwise incomprehensible point your were trying to make. Or I was refusing to answer a question that I’ve answered a hundred times already, e.g., what does the term “effectively” mean in the context of a statement such as “Claims in the form [oldstep]+[newthought} are effectively claims to the newthought itself, at least from the standpoint of an otherwise lawful practitioner of the prior art [oldstep]”.
But yes, the archive is useful. It shows, among other things, that (1) you made an –s out of yoursel by failing to understand what the term “free” means in the context of a “free market”; (2) that you made an — out of yourself by failing to understand the difference between “sex” and “reproduction”; (3) that you completely misunderstood the “actual law” that would be applied by the Supreme Court in Prometheus; (4) that you used s-ckp-ppets for years to create an imaginary group of “friends” who always agreed with you and participated in your habit of persaonlly insulting anyone here who you perceived to be “anti-patent”; and (5) that you made up from whole cloth a story about an imaginary law firm that uses staff people to receive, open, review and discard registered letters to patent attorneys when those letters refer to prior art that might be impact a firm client’s patent rights.
That’s just off the top of my head of what the archives show. I could come up with more but that seems like plenty for now.
No, because Siemens already sold the right to use the invention when it sold the machine to A. So Siemens’s right to prevent others from using or selling the invention are exhausted. Now if B disassembles the machine, figures out how it works, and starts mass producing copies of it, then Siemens has a cause of action for patent infringement.
This discussion gets more confused the further it strays from the words in the statute. The word “plants” is not in 35 USC 271. The word “makes” is.
If Bowman plants the seed and it makes a seed that is covered by the claim, then he infringes. But if he plants the seed and it does not make a seed that is covered by the claim, then he does not infringe.
2+2 is still equal to 4.
My completely dead-serious response is this: 2 + 2 = 4. If Bowman plants the seed and it turns into a plant, he infringes. But if he plants the seed and it does not turn into a plant, he does not infringe. That is 2 + 2 = 5.
“Could Siemens come after hospital B for infringement, even though it received compensation for the machine from A?”
Yes. Should it win? No. Other laws apply to deter B’s conduct.
“What if, among the relevant patents, was a method patent on the use of the MRI machine?”
Quanta says Siemens has no cause of action as to A, thus (in my opinion) it has no cause of action as to B. Is this the morally correct result? I don’t know, but again, other laws apply to deter B’s conduct.
Where is the requirement that Siemens must sell an MRI machine merely because it has a patent on the machine.
Of course, soybeans aren’t direct infringers, but Akamai changed the rule that there must be a direct infringer for inducement liability. The statute says “induces infringement” and not “induces direct infringement”.
I wouldn’t bet the farm on an inducement theory based on the actions of soybeans, but Akamai opened the door for this type of theory. There is still the issue of can you “induce” a plant to take actions.
I appreciate your concern. I do recognize that calling this theory is highly suspect.
Hans–
See my comment on the other thread at 2:50 pm on Oct 9, 2012:
“The CAFC held that in having planted the seed (presumably in such a manner that it would germinate), the grower (Bowman) creates “a newly infringing article”. (Not to mention the fact that he contributed to the thriving of the resulting plant by applying glyphosate herbicide to competing plants, and likely also contributed thereto by irrigation and/or fertilization of the plant.)
Therefore, according to the CAFC (and also to logic, in my opinion) “the farmer” DID make a patented article. Remember, according to the claims, patented articles include molecules, plant cells, and seeds of those plants.
(Not to mention that Bowman appears to have admitted to having infringed the method claim 130.)
“In this case Monsanto is [correctly] claiming that [but for the actions of defendant Bowman, the seeds in question would have contributed nothing to the production of infringing articles].”
In your recent posts, you are merely stating conclusions, without supplying any argument or supporting facts.
What is your detailed response to my position in that other thread, given both the oral and what you know about the facts of this case?
Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?
Yes, obviously. Unless “attempted infringement” is actionable somehow. They don’t give a Nobel for attempted chemistry either.
You build a factory to churn out infringing product. The factory burns down, full of raw materials but before production starts. No infringement. Easy, right?
“No, that can’t be right. Pretty much everyone buys their soybean seed from Monsanto. So, pretty much everyone is not an infringer.”
Sorry, here let me put it into ta rd tongue for you, pretty much everyone (aka all soybean farmers) are infringers at this point precisely because they chose to be, OR ARE LICENSING SO THAT THEY ARE NOT INFRINGERS BUT WOULD BE SANS LICENSE.
“What the judge meant is, because Monsanto seeds are the only seeds around, everyone who does not want to buy Monsanto seeds would be force to infringe because no other seeds are readily available”
No, nobody is being “forced” to infringe because of lack of seeds, farmers have gas to haul seed 100 mi. or further. One large truck load should do. You really don’t know anything about farming do you? This is why it is so hard to talk to you about things Les, your ta rdation makes it really hard to even talk about basic things. The seeds from Monsanto are being used because everyone <3's them, not because they're the only seeds around. Farmer Bowman didn't want to use them because of $$$. But he didn't want to use the seed from 100 miles away because it wasn't roundup ready, and he figured he'd get enough roundup ready from the grain elevator to ensure a decent crop. He was correct.
You're having a very hard time with the basic facts of the case lester jester, as usual, and this is the last time I'm going to bother to correct you. It seems rather clear which case the way will go, and it is not worth my time to teach you. As I've offered in the past, I can teach you further for some $100 per hour, with a one hour minimum.
Malcolm, one of the problems with Prometheus was this: what if the level of metabolites detected was outside the range? I discover that a genetic locus, X, has two alleles, A and B. I discover that if you are A/A or A/B, you will get cancer, but if you are B/B, you will not. I obtain a patent claim as follows: Method for predicting susceptibility to cancer comprising determining genotype at locus X, wherein A/A or A/B indicates susceptibility to cancer, and wherein B/B does not. Suppose later it is discovered that there is a third allele, C. If I perform a test to determine a person’s genotype at locus X, and the person is A/C, or B/C, do I infringe? What does this have to do with Monsanto v. Bowman, you say? Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?
“or the sake of argument, lets say that were correct. Benson prempted all uses of THE algorithm, THE ONE CLAIMED.
Similarly, Monsanto’s claims preempt all uses of THE soybean, the one claimed. ”
Correct, the difference is, algorithms are abstract, soybeans are not. Which I know blows your ta rd mind, but sorry bro, that’s just how it is.
“You’re doing that l_ie-ing thing again, anon. Bad habit of yours.”
The site’s archive feature can be used to show the many (MANY) times that you claim to not know what “effectively” means when it is convenient for you, and yet know exactly what it means when it is likewise convenient for you.
Once again – you claim “l_ie” and you cannot (and will not) provide what the explicit l_ie is.
Prof. Crouch, do we reeally need to put up with this obvious c_rrp?