Guest Post: Monopoly Without Apology

By Shubha Ghosh

Without any surprise, even to those who wrote amici in support of the farmer in Bowman v. Monsanto, the Supreme Court ruled in favor of Monsanto last week. During oral arguments in February, the Court made it clear that it would find against Bowman because he had made an unauthorized copy of Monsanto’s patented seed. Since oral argument, the focus has been on how the Court would rule in favor of Monsanto. The final ruling, while narrow in its language, is a potentially confusing one. In this post, I write about the implications of Bowman for the future.

Towards the end of her opinion for a unanimous court, Justice Kagan states that the ruling applies only to the facts at hand. The Court leaves open how the exhaustion doctrine applies to other self-replicating technologies. As a co-author of an amicus for the American Antitrust Institute on behalf of Bowman, I was relieved to read Justice Kagan’s rejection of the broad exception to the exhaustion doctrine for self-replicating technologies adopted by the Federal Circuit. Such a broad holding would mean that first sale and other applications of exhaustion would have no place in biotechnology or digital technologies. Contrary to the Federal Circuit, and citing treatment of software under copyright, the Court acknowledges that patent rights may not extend to necessary, but incidental copying, or to situations where copying occurs outside the control of the purchaser. Similar limitations may exist for making under patent law in the exhaustion doctrine.

What is more troubling, and somewhat confusing, is the Court’s treatment of making under the patent act. Bowman’s act of infringement was simply the act of planting the seed for another generation. This broad construal of infringement expands the scope of patent infringement to include the sort of incidental infringement that the Court acknowledges as possibly protected by exhaustion. During oral argument, the Court asked Monsanto’s counsel about inadvertent infringement, but there was no engagement. Whether inadvertent or not, it appears from the Court’s decision is that planting by itself is infringement. That conclusion is inconsistent with precedent and with previous cases.

The Court cites its 1962 decision, Wilbur-Ellis Co. v. Kuther, for the proposition that a purchaser cannot make another version of the patented item under the exhaustion doctrine. However, the Court did not mention that Kuther involved a situation in which the purchaser was not found liable for patent infringement. Specifically, the purchaser retrofitted a patented sardine-canning machine so that it could handle larger sizes of cans. Although the patent owner claimed this retrofitting to be an unauthorized reconstruction of the patented machine, the Court held that in adjusting and putting together the unpatented parts the purchaser was engaging in authorized repair.

Bowman argued that by planting the seed, he was harnessing the unpatented reproductive capacity of the seed. The Court dismissed this argument as the “blame the bean defense.” Admittedly, the argument might mean a broad exhaustion doctrine for self-replicating technologies, a conclusion that is equally troubling as the Federal Circuit’s broad exemption from exhaustion for such technologies. But the Court dismissed this argument too quickly. By concluding that planting is by its very nature reconstruction, the Court ignores the unpatented natural processes that are embodied in the act of planting. The use of the unpatented natural processes is discounted completely. In ruling against Bowman, the Court relied on a precedent that in some of its elements favored the purchaser.

The Court also relied on its 1882 decision, Cotton-Tie Company v. Simmons. In this case, the patentee distributed its patented tie for bundles for free with the cotton bales it sold under the express licensing term that the ties be used only once. The defendant collected the used ties and reconstructed them. The Court held that the defendant infringed the patent. The facts of Bowman are similar to that of Simmons. Both bought used versions of the patented product and reused them. But there are key differences. The Court’s finding of infringement in Simmons rested on a clear application of the claims of the patent which covered precisely the reconstruction of the patented ties. In Bowman, however, the Court relies on a dictionary definition of the work make to conclude that since the patented gene was part of the next generation of seeds grown by Bowman, the farmer had made the patented invention. The Court does not consult the language of the claims. Instead the Court concludes that planting is making and, under the Patent Act, any making is an infringement.

But the Bowman Court seems to be confused on when exactly making is infringement. In footnote 3, the Court considers the hypothetical of a farmer buying the patented seeds from Monsanto without an express licensing term that allowed the farmer to plant the seeds. The Court says that in such a scenario, the farmer would have an implied license to plant the seed once. But if planting is infringement, from where does this implied license arise? The Court seems to be saying that the implied license is inherent to the transaction. Why else would a sane farmer buy the seed from Monsanto except to plant?, the Court implicitly asks. The Court, of course, gives an answer to this question when it acknowledges that there are uses of the seed that would be protected from infringement under patent exhaustion: as feed for livestock or even for personal consumption. The Court’s hypothetical raises the question of when the license to plant is implied and when it is not. This confusion raises the question of the legal basis for determining when a planting of a seed is a making of the patented gene.

The Court’s legal basis ultimately rests in policy. It states that its concern is with the unlimited reproduction of the patented gene which would prevent Monsanto from developing a meaningful business model for the distribution of its seed after the first sale. But exhaustion does not remove all remedies for patent owners. Breach of contractual restrictions can give rise to contract remedies, ones that may be less draconian than a patent injunction or treble damages. During oral arguments, the Court characterized this argument as having contract substitute for patent. That is a mischaracterization. Contract remedies can supplement patent remedies, particularly in cases of exhaustion. Contract remedies do not eviscerate a patent, and they do not serve as a poor substitute for a patent. Instead, contract remedies in the case of exhaustion serve to balance the rights of patent owners with those of consumers, business people, and inventors that make use of patented articles. The Court affirmed this notion in footnote 7 of its 2008 Quanta decision, which remains good law after Bowman.

What is the most revealing about the Court’s opinion is its frequent reference to the “patent monopoly.” When I first read that phrase, which appears four times in a ten page opinion, I kept thinking of the bad old days of Justice Douglas, who viewed patents as inherently anti-competitive. The Court in Bowman, however, uses the term of patent monopoly to refer to the patentee’s exclusive rights in the specific patented article that is sold. According to the Court, the monopoly in that particular article is broad and is compromised if unauthorized making is allowed. The Court sees that threat in Bowman. Unfortunately, in reaching its decision the Court based its decision almost exclusively on the interests of the patent monopolist without thorough consideration of its own precedent, the analysis of the underlying unpatented natural processes, and the relationship among planting, making, and implied license. With the patent at issue about to expire, perhaps the impact of the decision is minimal. However, with the next generation of Round Up Ready and genetically modified seed currently under review in the USPTO, the impact of the decision will undoubtedly be felt by the next generation of inventions and users.

Shubha Ghosh is The Vilas Research Fellow & Professor of Law at the University of Wisconsin Law School.

63 thoughts on “Guest Post: Monopoly Without Apology

  1. I would first opine that all Beauregard claims are obvious

    Interesting. Would you also opine that all molecules are obvious? After all, they are all made up of known elements, configured with known forces.

  2. The Court noticed what many of you inherently know but haven’t acknowledged, for self-replicating technologies, “using the article” is the same as “making the article”

    Applying oil-eating bacteria to an oil spill is both using the invention and creating more in the process. Planting seeds is both using the seed and creating more. Running a software program both uses the existing code and creates copies.

    Most of us can probably agree with the Court that when this occurs, the patentee’s right to control the making will usually trump the consumer’s right to use. The patentee holds ALL rights to their invention and the sell of the article only exhausts the right to use, not the right to make. Therefore, he may still hold claim to preventing an infringement of that right.

    What is interesting is the Court’s definition of “make” and its relation to a volitional act on behalf of the infringer. From my reading, knowingly planting a protected seed would be infringement. The use of herbicide is largely unimportant except that it solidifies the fact that Bowman “knew” they were protected rather than making a calculated guess.
    My curiousity is how the Court would construe other technologies. Running a software program is a highly volitional act and it seems that any form of computer self-replicating technology would infringe when used. Alternatively, biomedical technologies that are primarily meant to cure or treat an affliction and only reproduce as a secondary function to achieve the first goal may fall closer to the “use” definition, rather than “make”.

  3. but there is no making restriction regarding contributory infringement, only selling and offering to sell.

    Care to provide a citation to that?

    Care to also provide a citation as to the requirement of being executable? Functionally related is not so contrained, NSII. Thanks again for proving the opposite of what you set out to do.

  4. I think the answer is no because a CD containing a patented program is rarely CRM. The data on the CD isn’t executable until it is installed on a hard drive. A CD might qualify as material under 271(c), but there is no making restriction regarding contributory infringement, only selling and offering to sell.

  5. that attempt to misrepresent or ignore

    should read:

    “that you attempt to misrepresent or ignore”

  6. Ned–

    Well, I would first opine that all Beauregard claims are obvious, and that there can be no infringement of an invalid claim.

    So it is impossible to infringe any claim by copying such a CD.

    If one disagrees with the premise and assumes that the claim is valid, then yes, there is infringement.

    BUT FOR THE ACTIONS OF “THE END USER” INDIVIDUAL, THE ARTICLE COVERED BY THE BEAUREGARD CLAIM WOULD NOT HAVE BEEN MADE.

  7. And then you let anon speak for you

    LOL – you act like that is a bad thing – I am merely providing you a valuable service by explaining what you are trying desparately not to understand.

  8. Ned, you’re ignoring the part of the opinion

    LOL – I love when Leopold asks for more stones to throw from his glass house. Here, Leopold, catch (oops).

  9. And what are you ‘only here’ for Leopold? I have made a valid comparison – one that attempt to misrepresent or ignore. The case is NOT just as simple as you wish it to be. If it were, then the extra words that drive the interesting wrinkles would not be there.

    Those words are there. You don’t get to ignore them (well, you can if you wish, but you can be wrong if you wish too).

    If it helps, pretend that someone other than me is rubbing your nose in your poor legal reasoning.

  10. LOL – is that like, “just shut up?”

    Awww, poor wittle baby – the poor legal reasoning is being highlighted, and wittle Leopold has nothing intelligent to respond with.

  11. LB, you are being priggish.

    Probably, Ned, but I’ve pointed to the language in the case that states the holding, and you continue to insist (without citing anything in the case) that the holding is something completely different. And then you let anon speak for you, to say something completely different.

    If you’re only here to have your bizarre little tête-à-têtes with anon, then fine – carry on.

  12. If it helps, pretend that someone other than me is rubbing your nose in your poor legal reasoning.

    Go away, trollboy.

  13. The problem is Nobody is that the SCOTUS just doesn’t understand science or innovation. They are making narrow holding because they have no idea what they are doing and are afraid. But, they want to make sure they the Fed. Cir. knows they are the bosses.

    In other words, typical people.

    The Obama appointees are a particularly ignorant lot. Shameful that someone can be appointed to the SCOTUS and be so ignorant of science.

  14. Leopold,

    And realize that I am NOT saying that Ned is completely correct in his reading – he is not.

    See my other posts correcting him. He too needs to re-read page 10, noting the language of ‘each’ near the ‘making’ admonition.

  15. It is less priggish and more obtuse.

    Clearly Leopold is attempting to exaggerate the position beyond all reason, without addressing the substance of the comparison (and ignoring what I actually posted).

    Straight up Leopold, do you think your reading of “situation as product only” is better than Ned’s read of “situation includes more factors than merely the product?”

    Read page 10 and try again – this time with just a modicum of intellectual honesty.

    If it helps, pretend that someone other than me is rubbing your nose in your poor legal reasoning.

  16. Ned is saying that the word so chosen necessarily invokes ALL of the details of the situation – down to and including the intent of the person to utilize the very aspect of the invention that needed to be protected (the ability to survive the poison), which overcomes even the natural ability of self-replication of a seed.

    Got it. So that overrides all the clear statements of law that the opinion gives us and that I have quoted. The holding applies only to Round-Up ready seed and applies only to farmers named Bowman. You’re right, that is a compelling reading of the opinion. Thanks for clarifying.

  17. Leopold,

    Ned is saying that he word Kagan used: “situation” involves more than just the type of self-replicating invention – more than merely the product.

    Ned is saying that the word so chosen necessarily invokes ALL of the details of the situation – down to and including the intent of the person to utilize the very aspect of the invention that needed to be protected (the ability to survive the poison), which overcomes even the natural ability of self-replication of a seed.

    Your version (under-reading) of limiting “situation” to mean only “product” is less compelling than Ned’s propensity to over-read.

    If Kagan had meant product, and product alone, she should have used that word.

    This is born out by the types of examples she used (which are not to be taken as exclusive). The exampels, did NOT only include products, but indicated acts and situations as well.

    As I said in the first posts following the decision – the wrinkles are where the interesting things will be happening.

  18. Ned, you’re ignoring the part of the opinion that I quote above, plus several other unequivocal statements that show that the holding is quite simple: you can’t make more of the patented product without permission.

    their holding of infringement was based on the facts as a whole. That included producing seeds in excess of those planted, and selling the excess. They reserved every other post harvest use.

    Where do you see this, Ned? Sure, they noted that this case was easy based on all the things you mention, but nowhere do they say that the outcome depended on those particular facts. The only thing remotely resembling a caveat is the statement that “our holding today is limited—addressing the situation before us, rather than every one involving a self replicating product.” But that doesn’t transform their holding from “you can’t make more” to “you can’t sell those things you make that are in excess of what you bought.” All Kagan is saying here is that the holding applies to products like those in the present case. She allows that there might be a different outcome if the product at issue is fundamentally different.

  19. You are still not following the right seed.

    I am talking about the seed that was made from the seed you are talking about and then placed back into the stream of commerece without any benefit to Monsanto (so no implied license can be had to that seed).

    This is my hypo Ned – pay attention to what I am telling you.

    Your wild theory about “producing in excess” is quite meaningless, as ANY making – whether in excess or not was what was held to be infringing. The Court was focused on the making and NOT on what happened to the seeds after that making.

  20. anon, I beg to differ. The SC held that exhaustion did apply – to the seed bought from the grain elevator. This was possible only because the sale to the grain elevator for resale as commodity seed was authorized by Monsanto.

    Regarding what the SC held, their holding of infringement was based on the facts as a whole. That included producing seeds in excess of those planted, and selling the excess. They reserved every other post harvest use. This means, dear anon, that infringement is not established unless sale of the excess is also established. Mere planting or harvesting it not enough.

  21. Monsanto authorized sale of the concerned seed to grain elevators

    No.

    This was a mistake made in discussion on the previous thread (one has to remember to follow the right bean).

    The question I put forth was for beans that were made from other beans NOT purchased under license – the third generation beans made from (and thus NOT exhausted per this SC decision) the elevator-sold beans that have NO active license between the parties of the transaction between the elevator and the second-season-sowing farmer.

    And Ned, – you are simply way off on what the SC held, as they did not address sale at all – they addressed making.

  22. In sum, one can conclude, and I think reasonably so, that the SC did not hold the infringement to be planting, nor even harvesting. The infringement was the sale of the harvested seed.

    Oh, for Pete’s sake, Ned! No, one cannot reasonably conclude anything of the sort. Why is it so hard to take the Court at its word? Yes, selling the seed harvested by Bowman would indeed be infringement. But that would be a second infringement, and was not the infringement that concerned the Court. From the opinion:

    [Bowman] forthrightly acknowledges the “well settled” principle “that the exhaustion doctrine does not extend to the right to ‘make’ a new product.” Brief for Petitioner 37 (citing Aro, 365 U. S., at 346).

    Unfortunately for Bowman, that principle decides this case against him. Under the patent exhaustion doctrine, Bowman could resell the patented soybeans he purchased from the grain elevator; so too he could consume the beans himself or feed them to his animals. Monsanto, although the patent holder, would have no business interfering in those uses of Roundup Ready beans. But the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission (either express or implied). And that is precisely what Bowman did.

  23. A Beauregard-claim-covered CD with a patented program is sold to an end user. He burns a copy of the CD, puts it in his off-premise archive.

    Has he infringed the patent by “making.”

    In answering this question, do not respond about damages, harm, or that the PO would never sue.

    Answer the question.

  24. IWT, the facts are that Monsanto authorized sale of the concerned seed to grain elevators who mixed them with seeds from others and sold them as commodity seeds, not intended for planting, and at a much lower cost. The sale by the grain elevators to Bowman was authorized by Monsanto. The SC agreed that there was exhaustion, but only with respect to the seed actually sold.

    Seed produced from the sold seed were not subject to exhaustion. Selling that seed was an act of infringement. It is not clear whether using such seed for other purposes was an infringement, the SC reserved those questions. Thus making for such other uses may not be deemed an act of infringement.

    In sum, one can conclude, and I think reasonably so, that the SC did not hold the infringement to be planting, nor even harvesting. The infringement was the sale of the harvested seed.

  25. See, Motion Picture Patent Corporation. The patent right are exhausted when trying to link the down stream sale of stuff used by the invention. Here, selling the seed under license only for use with our patent expired roundup chemical – would have implicated exhaustion. But that was not the case.

  26. “Am I the only one troubled by the apparent extension of patent rights to the chemical by the thinking of the good doctor? ”

    I actually was but I wasn’t going to trouble myself to go on and on about it.

  27. The license…?

    Which license are you taking about? And who (explicitly) are the parties to this license?

    It appears that you do not have a grasp of the facts in play – the graineries themselves have signed no license of any kind.

  28. No, the license said that they were free to sell it for any number of uses. That didn’t include replanting.

  29. I have been watching the House hearing on the IRS.

    The single overwhelming impression that I have gotten is that

    Doug Shulman = Michael Scott

  30. Wow, you charged at someone else for a change. try reading what Ghosh actually said (hint: it was not the Supreme’s writing that was beign discussed as to a broad exception to the exhaustion doctrine).

    Wow, another articulation fail. And you do this kind of thing for a living?

  31. Implied in this is that it would be permissible “repair” to breed replacement mice as they age, so long as the number of mice is the same. Does anyone disagree?

    I do. There’s no such implication in Kagan’s decision.

  32. bja,

    My post was eaten, but here is the gist:

    What do you feel about the ramifications to the stream of commerce now that the SC has handed Monsanto the keys to the graineries?

    Clearly now, would you not agree that the graineries are on notice that ANY grain they buy may be illicitly made – and nonexhausted – new particular patented items for which Monsanto has not been rewarded. How would you excuse the graineries from liability from patent infringement on these nonexhausted items that the graineries are selling? Selling a nonexhausted particular patented item is still direct infringement, right?

    And wouldn’t you agree that there are more sacks of money to be had from the grainery network than from a 70-plus year old independent farmer?

  33. Ripple effects still need to be sorted out.

    Now that the seeds as products of the second season plantings are deemed to be an unexhausted making, how do you feel about those in the stream of commerce that are also making money off of those still enforceable particular patent items? Do you think that the grain elevator owners are – or should be – on notice that when they buy and them turn around and sell such second season illegally made product that they have opened themselves up for infringement liability? On what basis would you excuse such liability for these unexhausted (and non-Monsanto-rewarded) patented particular items? What’s to stop Monsanto from sending a letter broadly to grain elevators putting them on notice now that they have this SC decision in their back pocket?

    Surely there are more sacks of money to be had there than from a 70-plus year old individual farmer, right?

  34. Nice spin. He was up front about what he was doing.

    Whether or not this was ‘circumventing’ the rights was the bone of contention – not the given that your post here implies.

  35. You should read some more about Bowman. He’s not some hapless oaf just trying to plant some beans. He admitted that he intended to circumvent Monsanto’s patent rights from the start.

  36. Am I the only one troubled by the apparent extension of patent rights to the chemical by the thinking of the good doctor? The chemical, having enjoyed its own period of exclusivity for its own patent, is in the public domain. Further, the chemical has ZERO to do with making – it’s a ki11er, not a maker, and the finding of making is at best a red herring (which reminds me, Ned have you let loose our voracious geneticly modified fish yet?).

    The point the good doctor makes is that the Justices wanted to find some way to punish the small-time 75 year old farmer who had bought an item from a commodity market from an independent third party source and simply used that commodity item for one of the natural and possible uses.

    Did he make new items (based on the pure reasoning of the Court)? He sure did. But the use of the ki11er chemical is at best tangential to the making. Let’s straight up recognize when the Supremes are mucking up strict liability of direct patent infringement when they are so doing. The tippy toe treatment of page 10 is just another keep-the-fingers-in-the-pie move by the Court.

  37. To answer…

    Now that is funny.

    The only time you venture forth into answer-land, you end up volunteering admissions that torch your agendas.

    Are you ready to give answers? There’s a boatload of questions that you keep ducking.

  38. Professor: your argument would have more force if Farmer Bowman had not used RoundUp herbicide on his crop. In that case, he would not have been taking advantage of the benefits of the invention and would have had a stronger argument that he was just doing with the beans what the beans were intended to do.

  39. Does anyone disagree?

    Yes. Making is making. You do not get to redefine the term in order to get to some “group” maintenance idea. If you did then why would the Justices have held that Bowman was merely maintaining his field size year to year?

    And your healing is just as absurd, as healing has nothing to do with making another article.

    Ned – at least try to make a cogent point please.

  40. A few years too late McCracken – this would have been really ‘funny’ in the Dudas “inNOvation” era.

    Now, merely mildly amusing.

  41. Take the Harvard Mouse.

    The way I read Kagan, “making” would involve making more Harvard Mice than one starts with and then selling the excess.

    Implied in this is that it would be permissible “repair” to breed replacement mice as they age, so long as the number of mice is the same.

    Does anyone disagree?

    Let’s get more complicated. Suppose the Harvard Mouse was used in an experiment, and he was near death. Does healing him and bringing him to full health count as infringement?

    If one escapes, can one breed a replacement? Kagan implicitly authorized backup copies. Breed them and use them when one dies of old age, an experiment or when one escapes.

  42. IBP, agreed. His premise is wrong. The court went out of its way to limit its holding that infringement was the planting and harvesting of seed in amounts greater than planting, and for sale of the excess.

    There is a lot of mens rea in there that I do not like …slippery slopes and all that. But the author has it wrong on the holding.

  43. Why did the Court so expressly decline…?

    Presumably because the necessary facts to make an informed decision weren’t in front of them. But that doesn’t always matter to them.

    why in the matter that it did: providing examples of possibilities that might lead to different results?

    I think those possibilities, at least, were put before them by one or both of the parties.

  44. I think the sole point being made was that the Court expressly declined to do what it certainly could have done: identify analogous situations and explain how the result is identical.

    Yet another vacuous statement. Why did the Court so expressly decline…? And why in the matter that it did: providing examples of possibilities that might lead to different results?

    C’mon Malcolm, try to actually say something meaningful.

  45. the Court clearly said,…< ?i>”

    Wow, you charged at someone else for a change. try reading what Ghosh actually said (hint: it was not the Supreme’s writing that was beign discussed as to a broad exception to the exhaustion doctrine).

    Granted, it’s a bit odd to be talking about that point because as you mention the Supremes did not buy Bowman’s attempt at establishing who was trying to make the exception.

  46. The whole point of a patent is to use it as a basis for a contract, or as the basis of the denial of a required contract. Patent law must effect this purpose, or else it is useless.

    Nice. But completely wrong. See a Supreme Court ruling circa 1908 (in relation to some sort of use requirement – particualrly absent in U.S. law)

  47. There’s nothing particularly “narrowing” about also saying that there is a possibility that some other situation might warrant a new, special rule.

    I think the sole point being made was that the Court expressly declined to do what it certainly could have done: identify analogous situations and explain how the result is identical.

    The obvious analogs to the plant utility patents are engineered bacteria, engineered viruses and engineered nucleic acids. I don’t see any reason why the same results here would not apply: you can use the patented composition for its purpose, which may include self-replication of the composition. But you can’t make more and sell it (or give it away to other people). And if the license terms prohibit use of re-isolated compositions, then you need to re-buy.

    What continues to strike me about this case is how difficult it seems conceptually for folks to wrap their minds around it. But it’s an old story with plant patents. You buy a patented ornamental tuberous plant and put it in the ground then it’s going to “make” new tubers. That’s permitted. But you can’t start your own business selling those tubers to other people and argue “exhaustion” when the patentee comes after you. That’s old news and I’m not aware that anybody was particulary surprised by that rule.

  48. As a co-author of an amicus for the American Antitrust Institute on behalf of Bowman, I was relieved to read Justice Kagan’s rejection of the broad exception to the exhaustion doctrine for self-replicating technologies adopted by the Federal Circuit.

    I don’t get it. There is no exception to the exhaustion doctrine in Bowman. As the Court clearly said, it was Bowman that was asking for an exception – he wanted a special rule that said that there is a special rule for “self-replicating” technologies that lets you make all the copies you want.

    For the same reason, this talk about the decision being “narrow” makes no sense. The (broad) default rule is that you can’t make copies of a patented article without a license. A companion (broad) rule is that exhaustion applies only to the actual item that was the subject of an authorized sale. Bowman sought an exception to that broad rule, something along the lines that exhaustion applies to any progeny of an item that was the subject of an authorized sale. Kagan said that there was nothing in the particular facts of this case that suggest that such a special rule is warranted. There’s nothing particularly “narrowing” about also saying that there is a possibility that some other situation might warrant a new, special rule.

  49. What Bowman should have done was simply buy the beans, then let the local neighborhood boy knock himself out having fun out in his fields planting without acting as a mastermind. Then he would do any spraying or whatever. Bam, then the facts of the case are less again him.

  50. I got to exactly this point before I stopped reading, for now:

    “Bowman’s act of infringement was simply the act of planting the seed for another generation.”

    Wrong. Totally incorrect. Why that is the case has been explained on an earlier thread.

    BUT FOR THE ACTIONS OF BOWMAN, THE PATENTED ARTICLE WOULD NOT HAVE BEEN MADE.

    The author’s discussion of policy is uhelpful. Business models and contracts are the very core of the patent system from the patent owner’s perspective, as they are how the limited monopoly is effected in the real world. The whole point of a patent is to use it as a basis for a contract, or as the basis of the denial of a required contract. Patent law must effect this purpose, or else it is useless.

    To the extent that this decision was based on policy, it was based on sound commercial policy, of which patents are only one part.

  51. A lot of sound and fury, signifying nothing. What exactly are the stated problems here? That the Court cited old cases and used a dictionary? And then we have this gem:

    “By concluding that planting is by its very nature reconstruction, the Court ignores the unpatented natural processes that are embodied in the act of planting.”

    Right, of course, the Court dinged Bowman for dropping a seed in a hole and whistling off with his hands in his pockets while nature took its course. Forget all the plowing, tending, watering, fertilizing, and harvesting – the major equity Bowman invested in making those seeds grow. Why, it was all natural processes! The Roundup sprayed on those plants must have rained down from heaven!

    No – that’s why the Court limited its holding to this narrow set of circumstances, and specifically said that other fact patterns with less human involvement were open questions.

    It’s hand-wringing flim-flam like this that gives law professors a bad name.

Comments are closed.