Monsanto Wins Again in Federal Circuit: Organic Farmers Have No Standing to Challenge Patent

By Dennis Crouch

Organic Seed Growers and Trade Ass’n v. Monsanto Company (Fed. Cir. 2013)

In 2011, Dan Ravicher at PubPat led a group of 23 plaintiffs in a lawsuit against Monsanto seeking declaratory judgment of non-infringement and invalidity of Monsanto’s genetically modified seed patents. Although not directly related, the patents challenged here are the same as those that Monsanto has asserted against dozens of farmers for growing unlicensed versions of its Round-Up Ready Soybeans. See, e.g., Bowman v. Monsanto (2013). In the present case, however, none of the plaintiffs want to grow genetically modified crops. Instead, the case asserts that the organic and heritage seed growers are in fear of becoming liable for inadvertently growing patented seeds. In many ways, patent infringement can be considered a strict liability tort and, as such, the unknowing use of another’s patented invention still creates liability for patent infringement. Thus far, Monsanto has promised that it will not sue farmers who inadvertently grow its patented crops so long as the farmers do not take advantage of their glyphosate resistant properties and so long as the farmer’s do not intentionally re-plant GM progeny. However, Monsanto has not offered any clear covenant-not-to-sue for inadvertent growing. Recent news that Monsanto’s experimentally genetically modified and non-FDA approved wheat has inadvertently spread even though Monsanto had attempted to destroy all of the crops.

The district court dismissed the case for lack of subject matter jurisdiction – finding that there was “no justiciable case or controversy” as required under Article III of the U.S. Constitution. On appeal, the Federal Circuit has now affirmed — holding that “appellants have not alleged any circumstances placing them beyond the scope of [Monsanto's] assurances.”

In dicta, the court spelled out the no-fair-use doctrine of patent law – writing that even trace amounts of infringing material can still constitute infringement. See SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331 (Fed. Cir. 2005); Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282 (Fed. Cir. 2009); and Embrex, Inc. v. Serv. Eng’g Corp., 216 F.3d 1343 (Fed. Cir. 2000) (Rader, J., concurring). The court also recognized that it is “likely inevitable” that conventional crops are contaminated with genetically modified crops. However, the fact that someone is likely infringing does not create declaratory judgment jurisdiction. Rather, the patentee must have taken some additional step to create some threat of enforcement and here, Monsanto has only stated that it will not sue unless the farmers take advantage of the patented seeds unique properties. The plaintiffs case here fails because they “have not made any allegations that they fall outside Monsanto’s representations.”

In sum, Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing. The district court correctly concluded that it lacks Declaratory Judgment Act jurisdiction.

Dismissal Affirmed

221 thoughts on “Monsanto Wins Again in Federal Circuit: Organic Farmers Have No Standing to Challenge Patent

  1. as a practical matter, how is this decision any different than a “clear” covenant not-to-sue farmers who sell seed with more than the recited trace amounts?

    Way to go Malcolm – do you consider this an answer too?

    I posted earlier, asking why Monsanto simply did not make a clear covenant not to sue, and you ‘answer’ with a question.

    The direct answer to your question is point-in-fact, the two simply are different.

    A supporting element – and one I previously posted, is that the premise of the assertion from Monsanto is fatally flawed. That flaw is the foundation of “we see no action for patent infringement” (paraphrased), which Judge Dyk destroyed with his own writing on pages 12-13. The bidning promise has a critical flaw.

    Try to actually read what I write and not be so possessed with tr011ing me.

    I know it’s tough and that you have soome serious deep-seated psych issues, but try just a little.

  2. Fascinating article here about NYU Law School professors and the massive grift factory they’ve set up for themselves, courtesy of the Wall Street lizards whose “work” they facilitate.

    link to lawyersgunsmoneyblog.com

    Just a taste:

    There’s much, much more in the same vein, including Sexton’s own sweetheart deal, which includes a $1.5 million annual salary package, and which pay him a $2.5 milllion “length of service bonus” in two years. If you’re worried about whether Sexton’s social security payments will cover the co-op fees, don’t: he will also be paid $800,000 per year for life after he retires.

    Plus there is this bonus at the end:

    uber-Libertarian Richard Epstein (among other things he thinks most of the New Deal is unconstitutional) is now apparently triple-dipping in three federally tax-subsidized ponds: the University of Chicago, where he retains a faculty position, NYU Law School, where Revez paid Hayek only knows how much to reel in yet another prestigious hire, and the Hoover Institution, aka the Taj Mahal of well-heeled right-wing think tanks. No wonder he thinks everything’s just fine in Lawyerland.

    Indeed. It must be very easy to make arguments that, e.g., paid sick leave is a bad idea or patents should cover more stuff and be easier for their wealthy owners to to assert, when the past few decades of one’s adult life have been spent gleefully choking down more money than 99.999% of Americans will ever see in their lives. In any case, Professor Epstein makes it look easy.

  3. Note too, the accuse-others-of-what-he-does throw in of “just declare unilateral ‘victory’ over all your ‘enemies’

    LOL

    Malcolm, you are simply the most dishonest person on this blog.

    Ever.

  4. From: link to patentlyo.com

    The closest we have to Malcolm (but I do give answers winkwink) and the question of do machines think:

    Starting on May 29, 2013 at 11:05 AM :

    anon said in reply to MM…
    “treatment of mental steps”

    LOL – machines do not think – ANTHROPOMORPHICATION

    MM said in reply to anon…
    Trx11boy: ANTHROPOMORPHICATION

    You should use italics, too, Trx11boy. And tons and tons of exclamation points. Then your “argument” will be even more “persuasive.” Or should I say “devastating”?

    On the other hand, I suppose you could just declare unilateral “victory” over all your “enemies”. That worked pretty well for you in the past, didn’t it?

    anon said in reply to MM…
    What works really well is all the points and questions that you leave unanswered, Malcolm.

    Or do you think that machines actually think?

    MM said in reply to anon…
    Trx11boy: do you think that machines actually think?

    If by “think”, you mean “process information”, “determine stuff”, “compare stuff”, “remember stuff” or “sort stuff” then,

      yes, some machines certainly do “think.”
  5. You claim face recognition is old and known.

    Maybe you can let everyone know what your definition of “face recognition” is. My camera is at least five years old and it “reconizes” faces. The inventors of that junk application admit that “face recognition” is old (they are just “enhancing” it) which is why the first step recites simply that the computer “selects a sample portion of an image that may depict a human face”.

    See their background section: “facial-detection processing can determine whether an image depicts one or more faces.” From the Summary: “A facial detection system or application can provide an indication that a face is believed to be depicted in an image or a portion of an image. The present inventors recognized a need to assess the accuracy of a detection made by such a facial detection system.”

    And the contribution of these inventors is to “automatically” look for “skin tone” colors in the detected “face”. If that isn’t a quintessential example of an insurmountabley obvious invention, then no such examples exist. We can quibble all day about every neuron that fires in a brain when it’s processing information (yes, brains do that) to determine whether a human face appears in an image, but I know that color is one of the considerations taken into account and weighed by my brain. I also know that billions of human beings, human-like creatures, (and other animals) have used the same criteria for millions of years.

    You have simply not responded to my posts

    Well, there you are. I hope it was as good for you as it was for me.

  6. Slip Op p. 16: “Taken together, Monsanto’s representations unequivocally disclaim any intent to sue appellant growers, seed sellers, or organizations for inadvertently using or selling “trace amounts” of genetically modified seeds.”

    Monsanto would be insane to go back on their representations, but regardless the CAFC has held they have disclaimed the intent to sue and so (at least as I read it) CAN NO LONGER sue on this basis.

  7. Your ridicule of an application for face recognition may be justified for a particular application but not for all applications for face recognition.

    So what do you think, NWPA – is the ridicule justified for the particular application that MM identified? Are those guys likely to get the Nobel Prize?

  8. You know MM, you claim that you respond to people’s posts fairly, but you have not responded to my post.

    We had a dispute. You claim face recognition is old and known. I pointed out that it is not old because it has never been solved adequately. That new applications should be reviewed using 102 and 103 with TSM.

    I have given you some type of indication of the level of how important face recognition is to neuroscience as well as cognitive science and computer science.

    You have simply ignored me. Your ridicule of an application for face recognition may be justified for a particular application but not for all applications for face recognition.

    You have simply not responded to my posts and your clown IANAE has harassed me.

  9. you should be eating a lot of crow.

    Is that what you’re eating? Because I think it’s causing you to hallucinate.

  10. You should be able to address the substance of his arguments regardless of whether or not he is anonymous.

    Andrew did address the substance of Dumpty’s arguments. Dumpty chose to pretend that didn’t happen, just like Dumpty pretends that whether or not I have a spam filter on my email is relevant to anything.

    This happens every day with Dumpty. That’s because Dumpty is a l-ying s0ci0path.

  11. You have fully earned the trash I throw at you.

    I don’t doubt that you believe this. Many s0ci0paths and path0logical liars are convinced of their righteousness and it’s impossible to persuade them otherwise. You’re a quintessential example, Dumpty.

  12. If you answered my question, Oregonian, I missed it. I’m not terribly interested in the complete history of “federal regulation of genetically engineered crops.” I am interested in your statement:

    federal regulators and legislators have relied on patent law to de facto regulate GE crops

    How exactly did these regulators and legislators “rely on patent law” to “regulate” GE crops? Based on what you wrote above, it seems to me that they “relied on patent law” for “regulation” in the same way that they “relied on copyright law” for “regulation”. Let me know if I’m mistaken about that.

  13. if an organic farmer finds his crop to be contaminated above the 1% threshold and then sells it as conventional, is he then suddenly not covered by the court’s estoppel decree?

    I don’t think it matters whether he sells it as “conventional” or not. At least part of what matters from the point of the estoppel is the amount of contamination.

    The issues you are bringing up do not sound like they would be unique to Monsanto’s product and perhaps you and “your field” should work with your Congresspeople in these farm districts to come up with some reasonable laws about crop contamination. One “organic” farmer could be growing his own patented plant on a field next to another “organic” farmer. When should that second farmer be entitled to grow and sell a patented plant that somehow “grew” on his farm (without being intentionally planted there by anyone), without ever having purchased it or taken a license? There’s probably an equitable answer. You’re a lawyer, aren’t you? Tell us what you think the answer is, given that you’ve thought about it so much. What lines should be drawn, and why?

  14. MM wrote: I assume you’re not suggesting that the feds/legs were relying on the Supreme Court to ban recombinant plant patents … or were you?

    Actually, the exact opposite — I think at the point (1986) the Coordinated Framework was drafted, those involved with its drafting weren’t even considering SCOTUS involvement. They just wanted genetic engineering to be an unregulated as possible to benefit private industry – it was the middle of Reagan Era, after all.

    To understand federal regulation of genetically engineered crops, you have to be familiar with the fact that the Congress and the Executive decided in 1986 that no new laws or regulations were necessary to oversee the testing, release and regulation of genetically engineered plants and organisms. Instead, they developed the Coordinated Framework for Regulation of Biotechnology, which shoehorned GE plants and organisms to fit under current laws overseen by current agencies. Yeah, it’s Wikipedia, but it’s gets the basic points right: link to en.wikipedia.org. I can explain more later, but have to actually do some work today, head cold or no.

  15. IANAE you following me around and soiling my posts is so unpleasant. IANAE: “LOL”. Do you know anything about face recognition as a problem by neurologist? Your ignorance never ceases to amaze and disgust me.

    The first time I worked on the problem of face recognition was in the early 1980′s with one of the top neurologist in the field.

    And your qualifications are that you like to provoke your betters.

  16. Malcolm thinks that computers really do think.

    Yes, this to is arhived.

    As I’ve been saying, Tr0llboy: you’re a pathological l-ying creep.

  17. Malcolm is having trouble reading this part of my posts…

    Right, because your writing stinks and because your point (if it could be understood) is either so banal and trite that it’s difficult to imagine anyone bothering to write it, or too bizarre to assimilate.

    You seem to be suggesting that Judge Dyk has “effectively removed” some “premise” (?) that previously existed. What previously existed and which still exists and what the CAFC made “expressly” clear is Monsanto’s “binding promise” not to sue farmers for selling seeds with trace amounts of Monsanto’s patented seeds. This gets back to Andrew’s original comment.

    When you tell the CAFC that you made a binding promise, and the CAFC agrees with you and expressly bases its decision on that binding promise, on what planet do you successfully get away with breaking that binding promise and filing suit anyway? I don’t think it’s the same planet that the CAFC lives on (i.e., Earth) because the CAFC would have written its decision differently if that were the case.

    Put another way, as a practical matter, how is this decision any different than a “clear” covenant not-to-sue farmers who sell seed with more than the recited trace amounts?

  18. I am willing to go as far to say that there will be a Nobel Prize awarded to the researchers that figure out how our brain represents and recognizes faces.

    LOL

    And if there isn’t, I suppose we can look forward to some allegations of corruption in the Nobel Committee. Most notably, for not having a Prize in the field of “information processing”.

  19. I will cop to having written extensively about this case from the week after the complaint was filed, and I speculated back then that it would end up messy. And yes, this is due in part to the strict liability framework patent law adopts; there are no innocent infringers, and patent law looks to human agency only, not that things can actually “copy” themselves. The Fed Circuit could have gotten around all this by giving the pollen/plants agency, but then you end up with farmers as bon fide owners, and how to deal with exhaustion per Kagan’s potential “exceptions” dicta. Dyk makes it pretty clear that he doesn’t agree with Kagan. And frankly, I think that Monsanto chose not to agree to the covenant was that it too cannot concede that its seeds/pollen/traits have agency; that would open up all kinds of cans of worms.

    So, without degrees of innocence, Dyk would have to look to degree of infringement. Where the court failed was that these are constantly moving goalposts – as I mentioned previously, how do you set an acceptable measurement for infringement if you’re measuring apples and oranges. Monsanto only tests fields and harvested seeds/crops for evidence of their patented traits — they’re not quantifying. Organic and identity preserved growers are the ones who care about quantity, and even those amounts are not set in stone, but are determined by each country and market. As I mentioned yesterday, I’ve got a head cold from hell, and probably need a much clearer head to understand precisely what Dyk is trying to do; he doesn’t seem to get the larger picture – such as, if an organic farmer finds his crop to be contaminated above the 1% threshold and then sells it as conventional, is he then suddenly not covered by the court’s estoppel decree? And does this give Monsanto some right to test every crop for potential infringement, not just its licensees? I have to print the decision out and go through it with a highlighter, sans head cold, to make any more definitive assertions. But after talking to briefly to others who work in the same field, we all are left shaking our head at the decision.

  20. I’d still like to know which part of the computer is its “brain.”

    And, MM, I’d like you to respond to my posts regarding face recognition. I am willing to go as far to say that there will be a Nobel Prize awarded to the researchers that figure out how our brain represents and recognizes faces. (which is information processing.)

    So, you should be eating a lot of crow.

  21. disregard controlling law

    Your incessant whining about “controlling law”, Tr-llboy, is something you bring up whenever a discussion about failures/flaws in the “controlling law” is brought up. Many times (and the KSR, Bilski, Nutjen and Prometheus decisions are classic examples) those discussions anticipate forthcoming changes in the “controlling law” which you disapprove of.

    As a result of your willful ignorance, some pathological inability to understand the topic that is being discused, or a simple desire to be your d-ckhead self, you often confuse “disagreeing with controlling law” with “disregarding controlling law.”

    All this has been explained to you before, of course, before and after your infamous Suckpuppetry Days.

  22. Oregonian: federal regulators and legislators have relied on patent law to de facto regulate GE crops when they didn’t want to develop an effective regulatory scheme.

    I’ve never heard this assertion made before. Can you give an example? I assume you’re not suggesting that the feds/legs were relying on the Supreme Court to ban recombinant plant patents … or were you?

  23. end italics

    Oregonian: From a patent infringing viewpoint, since the glowing plant is probably covered under Alexander Krichevsky’s (BioGlow) 2010 patent application, who does he sue when his patent is issued? The glowing plant project is not a company, but a Kickstarter project.

    If he has a patent on all glowing plants (and not just an “application”), he can certainly sue the individuals who are making the plant and offering it to “investors” in exchange for the money.

    how dangerous can their plants with their untested gene sequences be, especially when their chosen plant is a brassica, and related to two or three dozen wild and domesticated species grown here in Oregon alone?

    Again, without more facts, the answer is “no more or less dangerous” than any other plant with a different sequence of nucleotides in its chromosomes, where that plant can mate with pre-existing plants. And as you surely know, such new plants come into existence, naturally, every day, on farms throughout the globe. Indeed, such new plants may be selected for, or bred, and those new plants can be as “dangerous” or more dangerous than the “synthetic” plants being created in labs. Certainly they seem to draw less regulatory attention, particularly from consumer advocacy types.

    I would think that growers of the (presumably improved) “domesticated” species would be much more concerned about the “contaminating” effects of the (presumably less desirable) wild species. I would also think that there are far more “mysterious” (and therefore potentially “dangerous”!) genetic differences between the domestic and wild species of brassica than between the domestic brassica and the recombinant glowing brassica.

    And just to be clear: I’m all for strict regulation and oversight of recombinant plants. I have no interest in a recombinant glowing plant and could care less if it was regulated or sued out of existence. My molecular biology friends made some of the first recombinant glowing organisms. That was a long time ago. It’s pretty boring, frankly.

  24. Oregonian: From a patent infringing viewpoint, since the glowing plant is probably covered under Alexander Krichevsky’s (BioGlow) 2010 patent application, who does he sue when his patent is issued? The glowing plant project is not a company, but a Kickstarter project.

    If he has a patent on all glowing plants (and not just an “application”), he can certainly sue the individuals who are making the plant and offering it to “investors” in exchange for the money.

    how dangerous can their plants with their untested gene sequences be, especially when their chosen plant is a brassica, and related to two or three dozen wild and domesticated species grown here in Oregon alone?

    Again, without more facts, the answer is “no more or less dangerous” than any other plant with a different sequence of nucleotides in its chromosomes, where that plant can mate with pre-existing plants. And as you surely know, such new plants come into existence, naturally, every day, on farms throughout the globe. Indeed, such new plants may be selected for, or bred, and those new plants can be as “dangerous” or more dangerous than the “synthetic” plants being created in labs. Certainly they seem to draw less regulatory attention, particularly from consumer advocacy types.

    I would think that growers of the (presumably improved) “domesticated” species would be much more concerned about the “contaminating” effects of the (presumably less desirable) wild species. I would also think that there are far more “mysterious” (and therefore potentially “dangerous”!) genetic differences between the domestic and wild species of brassica than between the domestic brassica and the recombinant glowing brassica.

    And just to be clear: I’m all for strict regulation and oversight of recombinant plants. I have no interest in a recombinant glowing plant and could care less if it was regulated or sued out of existence. My molecular biology friends made some of the first recombinant glowing organisms. That was a long time ago. It’s pretty boring, frankly.

  25. LOL – like you haven’t tried to not only disregard controlling law (that you admitted to knowing), you have actively proletized that the law was something else entirely.

    Blatant 1iar!

  26. is for them to decide

    LOL – that would be a NO. Or do you forget we played the game already of “if they want to correct me they can come and post so” and I posted that everyone agrees with everything I say and no one posted to say otherwise?

    trashtalking-for-trashtalking’s sake

    WRONG again. You have fully earned the trash I throw at you. And quite contrary, your unending stream of insults is delivered to all types of people – first time posting cancer survivors (who could forget that?), sons grieivng for dearly departed fathers, even people who never even post here, and who can forget the references to dead presidents?

    Unable or unwilling – LOL – I am perfectly able and willing. It’s just that your little circle does not qualify for the reasonable factor.

    general consensus (including 9 of my best friends;) around the ineligibility of [oldstep]+[newthought] claims

    LOL – 9 of your svckies, that you do not use? Sure. wink wink. No one except you or your mindless cheerleaders has bought into that claptrap. Funny, that the only people ever to post that theory have used exactly the same words, and made exactly the same mistakes from reading the Prometheus decision. (hint, you need me to sm@ck you upside the head again with what the Court would not let become a dead letter?) Funny too, then you still have not delivered on the two items I recently posted on another thread in relation to that CRP.

  27. Would “sticking your foot so deep in your mouth” be like admitting that you know what the controlling law is to the exceptions to the printed matter doctrine?

    No, I don’t think so. I suppose if I was giving a long lecture to someone entitled “This is the Controlling Law to the Exception of the Printed Matter Doctrine” and I admitted at the end of the lecture that I had no idea what the “controlling law” was and I was making the whole thing up, that would be sticking my foot in my mouth.

    You know, sort of like how you proposed that a successful strategy for not having to learn about prior art is to use mailroom staff to screen and destroy registered letters to attorneys that contain relevant prior art, but then you couldn’t name a single other person on the planet, much less a law firm, who actually employs that strategy. That’s sticking your foot in your mouth. It’s also dishonest and, frankly, a little bizarre. But you certainly did it.

    Getting back to the issue of “admitting” that I “know” about a topic that you can read numerous opinions about online … no, I don’t think that’s putting my foot in my mouth, even if I disagree with most of those opinions. Of course, nobody knows what the h— you are talking about anyway, Dumpty, so it’s rather pointless to try to respond to you.

  28. The “glowing plant” creators are planning on using a genetic compiler to create the gene sequences (relying on “natural” genetic sequences) and then are using a DNA laser printer to synthetically “print” the sequences onto a medium that will then be transferred into the foreign cells (they plan on using a gene gun so as not to be covered by APHIS regulation, even though they admit that using the gun may “scramble” (their words) the gene sequences.) While transgenic genetic engineering is arguably relatively safe, because at least you’re using known gene sequences (albeit for different species,) in synthetic biology, there are no such constraints – you can fire up your Genome Compiler and create all kinds of new and fun sequences, send them off to the DNA laser printer, and test them out in privacy of your own home or neighborhood DIYbio lab.

    From a patent infringing viewpoint, since the glowing plant is probably covered under Alexander Krichevsky’s (BioGlow) 2010 patent application, who does he sue when his patent is issued? The glowing plant project is not a company, but a Kickstarter project. They claim they don’t really believe in patents (“Open source! Open source! is their battle cry, although they might be “forced” to file for “defensive” patents.)

    The glowing plant creators don’t plan on running field tests, or actually any tests, because how dangerous can their plants with their untested gene sequences be, especially when their chosen plant is a brassica, and related to two or three dozen wild and domesticated species grown here in Oregon alone? I’m not a huge fan of traditional genetic engineering for many reasons, but my concerns over synthetic biology make those reasons look pretty trivial all around.

  29. You forget the best link – the one after oral arguments where you freneticly danced full circle and took a position that I extolled (and that you claimed you could not understand because of English as a second language).

    What about that one?

  30. As for insults, who haven’t you insulted?

    As you know, Tr-llboy, I’ve been commenting here for many years now so I’ve had the chance to disagree with just about everyone on some topic or the other. Whether or not I’ve wrongly insulted anyone in the course of those conversations is for them to decide. But there is simply no comparison between the abject insanity/s0ci0pathology you bring to the table and my “directness” or whatever you want to call it. I’m honestly not looking to pick fights with you. But I don’t see any point in just sitting there while you engage in your nutty, personal trashtalking-for-trashtalking’s sake.

    your ech0chamber little circle

    You seem unable or unwilling to understand that there is a rather profound difference between an “echo chamber”, on one hand, and a group of reasonable people with different interests and backgrounds simply coming to the same conclusion because they are reasonable people. The general consensus (including 9 of my best friends;) around the ineligibility of [oldstep]+[newthought] claims is just one quintessential example of this that, for whatever reason, seems to ratchet up your kookiness, and that of your own equally strange “friends.”

  31. Very interesting.

    Whether or not some infringers are “less innocent” than others is also very interesting.

    What od you think of Dyk’s arguments on pages 12-13? My read is that there is no such thing as “less innocent.”

    Also (in spite of the fact that certain posters are bound and determined to kick up dust), do you note that Monsanto’s ‘assetion not to sue’ (and particularly notable is that this is EXPRESSLY not a covenant not to sue – why Monsanto simply did not do such I will leave to others) is premised on their stated belief that they saw no premise for bringing suit? The very premise that Dyk quite effectively removed in this decision?

    Strangely (or not), Malcolm is having trouble reading this part of my posts…

  32. Still don’t have an answer from you regarding whether you use spam filter on emails, Malcolm.

    Awfully interesting that you dare not make a positive, affirmative, no-weasel answer.

    Maybe your ‘other hand’ Bob (or is it Robert, or Francis, or Keeping It Real) already simply threw the letters away.

    LOL – and you want me to keep digging.

  33. Dumpty questions most pertinent

    As decided by Dumpty, of course (usually after he’s been given several chances to re-write his “pertinent” question into plain English). Keep digging, Tr-llboy.

  34. You do not answer the specific questions most pertinent to the discussions (context) in which the statement is made.

    Horesh-t. See, e.g., these threads re Prometheus:

    link to patentlyo.com

    link to patentlyo.com

    and that last one is one of my favorites because you can clearly see your various suckpuppets flailing about and telling the exact same l i e s that you continue to tell today.

  35. I understand that it’s not material; I just think that if we’re going to make some infringers less innocent than others, it’s a better measurement than allowing Monsanto and non-involved third parties to define when “estoppel by blog” becomes an effective defense.

  36. Would “sticking your foot so deep in your mouth” be like admitting that you know what the controlling law is to the exceptions to the printed matter doctrine?

    Or are you going to try to ‘spin’ that too as an admission that you never made?

    (and yes, these admissions of yours are archived, which makes your attempts at spin especially futile)

    Just [shrug] and stand by.

  37. Strictly speaking, yes, federal regulation of genetically engineered plants is separate from patent law; however, federal regulators and legislators have relied on patent law to de facto regulate GE crops when they didn’t want to develop an effective regulatory scheme. Not understanding the weaknesses in the current framework, and having patent law do all the heavy lifting, provides an illusion that is about to disintegrate as the first seed patents expire next year. I consider IP/patent my primary specialty, but learned very quickly that I couldn’t do effective IP Ag law without understanding the weird relationship between patenting genetically engineered self-replicating plants and regulating (or not) their release into the general agricultural environment.

    Even with a broad Myriad decision, Monsanto (and the other three BigGene) still have to navigate the 3-5 years it takes to get genetically engineered crops covered under the Coordinated Framework to a deregulated, and marketable, status. And in light of the growing DIYBio and biohacker synbio movement (who, Myriad or no, don’t give a fig about “infringing patented research tool compositions” unless specifically sued,) they’re not going to abandon the only club they have to keep their 60% market share dominance. In fact, I suspect Monsanto’s recent move into synthetic biology, with the acquisition of one of Craig Venter’s properties, means they’ll be attempt to rein in synbio through their patents, since it’s even less regulated than traditional genetic engineering.

  38. As for insults, who haven’t you insulted? Is there a single person outside of your ech0chamber little circle?

  39. Funny that you call me Tr-llboy

    No, it’s not funny. It’s apt. As most readers of this blog know, you spent years tr0lling this blog under dozens (hundreds?) of different pseudonyms attacking and insulting anyone that disagreed with you and pretending that your “team” was struggling against a “vocal minority” when, in fact, the opposite was true. Eventually, Dennis outed you, and probably hoped (naively) that it would change your behavior in some meaningful way.

    But you’re a blogtr0ll, Tr-llboy, plain and simple. For cripesake I’m not the guy who trashes Dennis and other “leftist academics” on a regular basis while extolling the greatness of self-interested shills like Gene Quinn. That’s YOU, Tr-llboy. Your sole purpose in life is to gratuitously insult and harass people who dare to question your software patent-fell-ting ideology. You sit here and post your l i e s and trash people day in and day out. One day it’s me. Next day it’s Ned. Next day it’s LB. Next day it’s Andrew Dhuey. Next day it’s Dennis. Next day it’s AAA JJ. Next day it’s 6. Next day it’s MD. Next day it’s [insert name here].

    Every couple weeks you manage to stick your foot incredibly deeply into your mouth, either because you can’t write in English or because you’re simply an ingorant d-ckhead. And every time that happens it’s just an excuse for you to double-down and turn up your a—holeness to eleven.

  40. Andrew did that already

    Explicitly wrong. Andrew failed to address the legal aspects and went for a purely emotional response.

    Try to keep up Malcolm.

  41. Nobody is arguing that [anon is right].

    On the contrary, it appears that several people are attempting that very thing.

  42. it seems doubtful that Monsanto would do anything if the total number of beans sold is so small that damages would be minimal).”

    LOL – tell that to Farmer Bowman.

    Probably the worst possible example you could come up with. And the best part is that you don’t know why.

    Keep it up, s0ci0path. And do let us know when you figure out the difference between email and registered mail. Maybe a lawyer can explain it to you? LOL.

  43. Given that both of your attempts yesterday were complete FAIL

    They weren’t failures, Dumpty. You’re a l i a r and a s0ci0path. Keep digging, though.

  44. If you think the legal position so identified is ‘foolish,’ by all means show some legal reasoning why.

    Andrew did that already, Dumpty. Trying to pretend that the reasoning is somehow illegitimate because it’s not sufficiently “legal” for you is just another one of the pathetic s0ci0path0l0gical games you play here.

    Today, if a Jewish cop pulls Mel Gibson over, Mel Gibson still has a legal right to discuss his anti-Semitic views with the cop. In fact, Mel Gibson can simply call up a Jewish cop on his own initiative and rant in the cop’s ear. But it’s not going to happen. Do you need the “legal reasoning” for this statement to be spelled out for you, Tr0llboy?

  45. Malcolm,

    Given that both of your attempts yesterday were complete FAIL, I am still waiting for you to name even one 1ie that I have said about you.

    Of course, this is standard practice for you, as you have accused me and failed to deliver an example many many many times now.

    Yes, this is archived.

  46. Oregonian,

    I think some of the difficulty here is this emphasis on intention of the infringer.

    As you noted in response to me above at 05:18 PM, this distinction is just not material.

  47. Oregonian: If even a kernel of corn ends up in non-amylase corn, it can destroy the starch of the entire batch.

    All this stuff is fascinating but has nothing to do with patent law (except to the extent that one might be able to obtain a patent on method of addressing the problem you refer to). Many of us (certainly myself) are no big fans of Monsanto or genetically engineered foods. I avoid them whenever possible. I don’t think they are going away, though. I also think that, at least in America, there are bigger health problems to, uh, fry.

    But the bottom line is that genetically engineered plants (properly claimed) are patentable subject matter and, realistically, only Congress can change that now. Interestingly, if the the Myriad decision is broadly written to prevent the patenting of novel nucleic acids isolated from both non-human and human sources, it might make it possible for companies like Monsanto to develop engineered plants more quickly (because they wouldn’t have to worry about infringing patented research tool compositions, like those in Myriad’s claims).

  48. The Center for Food Safety has filed against Monsanto on behalf of a number of Washington and Oregon farmers. There’s strong precedent for the case in the Liberty Link rice litigation, where Bayer settled in 2011 for $750 million with rice farmers whose rice was contaminated in 2006 by non-approved genetically engineered traits, causing them to lose most of their European and Asian markets.

  49. Mr.accuse-others-of-what-you-do,

    Funny that you call me Tr-llboy, as you tr011 my posts, yet do not actually take the time to read them to see that I have already answered the questions you ask at 10:35.

    C’mon Malcolm, at least try to put some thought into your posts, OK pumpkin?

    So what?

    So try (again) to keep up with what the point actually is.

    And yes, that will take some reading skills on your end.

  50. It’s also the tactic the “Glowing Plant” people are taking, to allow the first ever unregulated release of a plant containing “synthetic” gene sequences.

    Should I be concerned about these Glowing Plants? They seem no more or less dangerous than a firefly.

    I get concerns about dangerous organisms being “released” for public consumption (or into the wild) but the concerns should arise from the risk presented by the organisms, not from the manner in which the organisms were created. There are many many more naturally occurring “non-native” but invasive or toxic plants whose sales and trafficking could reasonably be banned or monitored much more diligently than they already are.

    More here:

    link to nature.com

  51. There are intentional infringers – who want to use Monsanto’s technology and not pay for it, and there are farmers who don’t want to use Monsanto’s technology, either at all or only for certain times/uses, and they too get lumped in with the intentional infringers due to the nature of the patented product, combined with what I would consider an unconscionable contract. The problem is the OSGATA decision places an arbitrary boundary based on the amount of patented traits, rather than on an intent to utilize those traits. Plus, it only looks regulations from one group, organic farmers, to determine an allowable “trace” limit for all farmers. Gene flow is occurring at a rapid pace — the latest research out of Canada indicates that up to 10% of non-GE canola has GE traits. These are obviously traits that are not being utilized, and yet, under this decision, Monsanto would not be “estopped” from pursuing these “infringers”.

  52. Monsanto could just go ahead and change its mind. Well, sure … if they were crazy.

    First they came for the people who legitimately owed them money, and I did nothing.

    Then something changed slightly.

    Then they came for me.

    Yup, sounds plausible.

  53. anon is right that the estoppel is likely fairly limited to the facts of this case

    Nobody is arguing that.

    it is interesting to ask where the line is.

    Right, that’s the question I asked anon at June 10, 3:43. His response was to fling an insult and then suggest that no change in facts were needed. Monsanto could just go ahead and change its mind. Well, sure … if they were crazy. But that’s not a “slight change” in the facts of the case.

  54. I have already shown that the assertion fails of its own accord.

    What assertion “fails of its own accord”, who made the assertion, and where did you show that? You’re engaging in your waffling games again, Tr-llboy.

    Your view of my post meaning diddly … rests solely on a “but they would be nuts” defense.

    So what? It’s true. They would be nuts to play games with the estoppel created in this case, for all the reasons Andrew mentioned.

  55. I’m not claiming Monsanto purposefully released the MON 71800 seeds found in Oregon. Frankly, I think it was probably negligence; strange, isn’t it, that these seeds were planted in 2011, the same year Monsanto trots out its new line of stacked trait wheat for field testing? In my estimation, the easiest explanation is that a bag of the old wheat was lost somewhere from storage to laboratory, and ended up mixed in with current seed (of a different variety, btw, as MON 71800 is hard red spring wheat, not the soft white winter wheat grown in Oregon.)

    So what is the problem? In 2006, the USDA’s Inspector General investigated how APHIS conducts field testing of GE crops, and found huge, gapping holes in oversight and regulation. Huge, as in, practically non-existent in some areas, particularly tracking of seeds/plants after testing is completed. While most of the current crop of GE crops are relatively harmless to humans (although may cause environmental and economic problems), there are some coming out that are significantly more problematic if not properly contained/tracked. Amylase corn, for example, genetically engineered for ethanol production. If even a kernel of corn ends up in non-amylase corn, it can destroy the starch of the entire batch. In addition, a number of plant biologists and ecologists are concerned about the stacking of traits and how it may allow for species dominance when transferred into wild populations. And then there’s synthetic biology applications, which may not be covered at all by the Coordinated Framework. So the problem isn’t that non-regulated wheat is growing in Eastern Oregon, or even why it’s there, but how it got there and can we prevent it, and scarier GEs, from getting out too?

  56. ” viz. glyphosate resistance”

    That’s where.

    Engineering a new composition to be resistant to public domain composition X “illicitly” “expands patent protection” for that public domain composition?

    BobTheButcher did a pretty good job upthread of explaining why that doesn’t make sense.

    You should try applying your logic to any other scenario, e.g., a new metal with increased resistance to rust. Is that an “illicit expansion of patent protection” for oxygen?

  57. Thank you. I think it’s important for people to understand how the Coordinated Framework works, as biotech has now found a way to “work around” federal rules and avoid any regulation of their GE crops. Essentially, if you use a gene gun and not an agrobacterium for gene transfer, you can claim APHIS doesn’t have authority to regulate you. This was the case for Roundup Ready Kentucky Bluegrass last summer. It’s also the tactic the “Glowing Plant” people are taking, to allow the first ever unregulated release of a plant containing “synthetic” gene sequences.

  58. Can you explain concisely, in plain language, what the problem is?

    While you’re at it, what would Monsanto stand to gain from an “unauthorized release” of whatever the problem is?

  59. Monsanto goes for the low-hanging fruit, not true “innocents.”

    So they settle, rather than go through litigation they’re sure to lose.

    So… Monsanto only goes after non-innocent infringers, when the facts are such that they’re sure to win on either infringement or breach of a long-term contract.

    And now we’re all in a tizzy over Monsanto possibly one day suddenly deciding to do the opposite of that.

  60. Monsanto goes for the low-hanging fruit, not true “innocents.” Their technology license agreements set out very stringent limitations not only on the planting of the current crop, but of subsequent crops as well — since many of the crops that contain Monsanto’s patented traits will “volunteer” or persist in fields for a number of years (canola seed can remain dormant for up to 10 years.) So farmers who decide to quit using Monsanto products, or even use non-Monsanto rotation crops, risk violating their earlier technology license agreements (there’s even a clause should you sell your farm, the subsequent purchaser is bound to use Monsanto’s products as well (I would love to test that clause in court.)) These are the farmers to whom Monsanto sends their rumored demand letters — farmers who may actually be “innocent” of using Monsanto seed at the time, but are actually in violation of their contracts with Monsanto. So they settle, rather than go through litigation they’re sure to lose. Almost all the cases of actual infringers that made it to court referenced these tactics by Monsanto, and from what I’ve heard, the OSGATA plaintiffs have actual evidence (although it didn’t seem to help their case.)

  61. Wasn’t an answer to your question?

    My bad, I guess I did cross discussion lines (not intentionally, miind you), but the specific Oregon case does include as a pivotal issue a most definte lack of 90% of others growing the stuff.

    For a generic case, I am not so sure that you can so quickly dismiss for lack of harm. While there may be a market for the stuff, as evidenced by 90% of farmers growing it, the particular farmer may still be harmed. For example, he may have a contract for organic crop, and which contract would provide a substantial profit above the genetically modified crop. Just because a market may exist does not in fact mean no harm done. Further, the generic case may very well include examples where the infestation is appreciably greater than 1% – which then, even in the present case, may likely raise the spector of an infringement suit (over and above the harm caused by a contamination-contract loss). Such may not be on the same level as the Oregon $500 million loss, but a real loss may very well still be present.

  62. Actually, because the wheat in question (MON 71800) was made glyphosate resistant through agrobacterium tumefaciens transformation, i.e., using a known pest (A. tumefaciens) to move genetically engineered traits (CP4 EPSPS) into a foreign cell, it fell under the regulatory authority of the USDA, specifically, APHIS, under the 1986 Coordinated Framework for Regulation of Biotechnology. The FDA determined years before that any foods (they regulate food, not crops) that contain the CP4 EPSPS gene are GRAS – Generally Regarded As Safe. I won’t go into how this doesn’t actually mean they are safe, just that the producer assures FDA they are, as it’s beyond the scope of this comment. Just suffice to say it’s the USDA, not FDA, which generally regulates glyphosate-resistant crops.

    APHIS was the agency responsible for monitoring the field tests and deregulation of the wheat. However, it never deregulated MON 71800 because Monsanto withdrew its application in the face of significant farmer resistance to the crop — including two state legislatures introducing bills that would place a moratorium on the cultivation of all genetically-engineered wheat. No other biotech companies applied for deregulation after Monsanto withdrew its application in 2004, although Monsanto did file with APHIS regarding new varieties of GE wheat in 2011 (these varieties are distinguishable from the earlier varieties because they have “stacked” traits, not just glyphosate resistance.)

    Wheat seeds only lasts about 12-16 months in the wild. If the wheat in Oregon was planted the last time the farmer planted his normal crop of wheat, that event occurred in October, 2011, and the plants they found were “volunteers” from the previous harvest of July, 2012. So we’re probably not talking about “wind” contamination here, as Monsanto last grew that wheat in Oregon in 2001. Monsanto, however, under APHIS field testing protocols, was responsible for recovering and either safely storing or destroying all testing seed. So if there was an unauthorized “release”, it seems Monsanto should be held responsible.

  63. in the Oregon case, specifically, there is not a 90% of farmers growing the stuff.

    I suppose you knew, even before you typed that, that it wasn’t an answer to my question.

  64. (sigh)

    INANE – in the Oregon case, specifically, there is not a 90% of farmers growing the stuff.

  65. There couldn’t be such a case with regard to the soybeans because they are labor intensive to plant. If, for example, the wheat were at issue, this type of question would be relevant.

  66. the Monsanto wheat in that case failed to garner FDA approval.

    FDA approval for what purpose? If 90% of farmers in some places are growing the stuff, they must not be having any trouble selling it.

  67. the Canadian case – years ago – in which Monsanto prevailed because the farmer did sell crops from seed blown on his land,

    Sure, after he sprayed with Roundup and not-very-accidentally saved the resistant seeds for replanting. It’s all in the Supreme Court decision, if you bother to read it.

    I’m still waiting for the name of the proverbial truly innocent farmer who was sued by Monsanto.

  68. IANAE,

    I think that some might find your premise of “isn’t inherently harmful or defective” to be the debatable point.

    Specifically (for example) the Oregon wheat incident, as you may have noticed that the Monsanto wheat in that case failed to garner FDA approval. So in a very real sense, there is a defectiveness issue in play.

  69. can the farmers into who fields Monsanto’s genetically engineered wheat blew sue Monsanto for the damage due to lost sales?

    Why is that an interesting question?

    Monsanto’s genetically engineered wheat isn’t inherently harmful or defective, and it’s not Monsanto’s fault if it winds up growing in the field of someone who subjectively doesn’t want it there.

    Anybody who grows plants outdoors and represents to their customers that they can control their crop’s provenance is knowingly taking a huge business risk. There’s no cause of action against your neighbor (who you already knew was a farmer) for deciding one year to plant the kind of stuff your customers don’t like.

    I would love to hear the argument for holding the neighboring farmer liable, much less the guy who sold him the seed. It sounds very much like someone’s cushy little business model fell apart, and they’re desperately looking for someone to sue.

  70. Same:?

      Why would you hire a lawyer who uses a photo of himself in a Chippendales costume on LinkedIn? Why not? Hear me out on this.

      I do mostly petition-stage appellate work at U.S. Courts of Appeals (en banc) and the Supreme Court (certiorari). Often my role is to push the boundaries of existing law. To do that well, it helps to have a little disdain for boundaries, generally.

      My clients will tell you that once I take a case, I become borderline obsessed with it (don’t worry — I don’t bill by the hour). I build amicus support, arrange for press coverage and bounce ideas around with other lawyers, professors and pretty much anyone interested in the issue at hand. This is what you want when you file an en banc or cert. petition. You’ve got some long odds to beat. I’m up for the challenge.

    link to linkedin.com

    Would it be a safe bet that you would not want to represent Monsanto if it wanted to push the boundary here by realizing that the foundation of their assertion not sue (and yet, odd that they simply would not agree to a covenant not to sue – pray tell why not?) was expressly wrecked by Judge Dyk on pages 12-13?

  71. I don’t think the bribery and cheating has gone to the level of the Federal Circuit yet. It is close and probably the line is still at the district court. State courts are about as corrupt as it gets.

    Professors are obviously immune right now otherwise professor like Lemley would be facing academic integrity violation charges from Stanford. I think it is outrageous that Lemley misrepresents the law and facts in journal articles that are quoted by the Supreme Court and the President. It illustrates how little integrity there is in this country. CJ Roberts could easily unmask Lemley. I have to read his functional paper to see how bad his misrepresentations are in that paper. I know it must be bad, though. I suspect if I read it that I will feel forced to write a letter to Stanford.

    So, it is a scary time. From what I see, the corruption continues to grow. All this watching by the NSA may change that. I wonder if the FBI might use that data. Strange times.

    But, seriously, from what I’v seen there is no problem right now at the circuit court level–none.

  72. Although, Andrew, I tend to agree with your point that Monsanto would be crazy to mess with the court.

    However, anon is right that the estoppel is likely fairly limited to the facts of this case and it is interesting to ask where the line is.

  73. That’s a pretty unfair attack Andrew. You should be able to address the substance of his arguments regardless of whether or not he is anonymous.

    Actually, his comments may be more forthright being anonymous.

  74. The point is not that Andrew is right from the “make a bet” perspective, BobTheButcher.

    The point is to analyze the legal opinion to show its limitations.

    If you think the legal position so identified is ‘foolish,’ by all means show some legal reasoning why. If you can only huff and puff and throw out an emotional response, well, that does about say it all as far as your legal prowess, doesn’t it?

    Now your second paragraph is more in line with my 8:34 post, as that is the condition of the Oregon wheat situation. And yes, it is very doubtful that standing would be an issue in that case.

  75. Andrew: you’re right, and everyone who reads this blog who has grey matter between their shoulders knows you’re right. But when it comes to this particular “anon”, you’re forgetting the maxim, Never argue with a fool (as I did a few moments ago when I responded to about a different point upstream).

    More interesting question: can the farmers into who fields Monsanto’s genetically engineered wheat blew sue Monsanto for the damage due to lost sales? I think I read somewhere that such a suit has already been filed; and I doubt it’s going to be dismissed on lack of standing grounds.

  76. “Nothing implied at all with the use of the chemical. It is a public domain item, and should not even be in the calculus of any court decision – its presence only speaks to an illicit extension of now-lapsed patent rights (unfortunately, this argument was not made inthe Bowman case).”

    say what? there’s no tying here – monsanto isn’t saying, and has never said, that in order to avoid infringement of the seed patents you have to buy glyphosate (sold by Monsanto as RoundUp but no longer patent-protected and available generically) from Monsanto in addition to buying the still-patent-protected glyphosate resistant seed from Monsanto. If they did that, there would be an anti-trust violation and the FTC would be all over Monsanto.

    But that’s not what’s happened. All Monstanto has said is, if you want to grow the patented seed and benefit from its unique properties, viz. glyphosate resistance, you have to buy the seed from us; if it appears in your field but you don’t treat it with glyphosate, we won’t sue you; if it appears in your field and you do treat with glyphosate, even glyphosate that you’ve bought from us, we’ll sue you unless you pay us for the rights to use the seeds. And if you bought it from us, you can use glyphosate from whatever supplier you want.

    so where’s the attempt to extend patent protection for glyphosate?

  77. Andrew,

    Really? The lame-@$$ ‘where is your real name’ response?

    Grow up and address the legal points.

    If you can – real name or not.

  78. Andrew,

    Your view of my post meaning diddly ignores the legal logic I presented and rests solely on a “but they would be nuts” defense.

    I would appreciate it if you actually addressed the legal arguments, rather than use strictly such an emotional appeal. I have already shown that the assertion fails of its own accord. All Monsanto would have to do is quote Dyk himself as enlightening Monsanto to an actual cause present – which they have cagily kept out of the assertion made to win this case.

    Please tell me you know how to think beyond emotions.

  79. anon, here’s why your anonymous post means diddly and why what the Court decided in this case means a ton with regard to the risk these plaintiffs will ever be sued by Monsanto for inadvertent infringement.

    The Federal Circuit would go ape sheist on Monsanto if it were ever to sue one of these plaintiffs for inadvertent infringement. That would be an affront to the Court, and I challenge you to find any company that depends more for its profitability on a single court like Monsanto depends on the U.S. Court of Appeals for the Federal Circuit.

    To be clear, I’m not weighing in at all on Monsanto’s positions in this or any other patent case. I observe only that Monsanto would be nuts to test the limits of the estoppel it set up in this case.

  80. Andrew,

    You do recognize that de minimus infringement is still very much infringement per Dyk’s discussion an that as such cannot square with the assertion given by Monsanto, right?

    The question here is not whether you or I would make (or take) a bet – the point being made is that the assertion fails of its own weight and simply means diddly.

  81. Andrew,

    Do you think this decision gives the plaintiffs an argument to stop any and all (or just some) of the costly mitigation efforts, seeing as the court did not view such efforts as having an effect on standing?

  82. LOL – sorry Malcolm, but no. Just because your fee-fees are hurt because I busted your lame post does not mean that I am a “effing pr–k, as usual

    Sure, as usual, I hand you your head, but like I have explained, you have control over that. Just think before you post your “nonsense as usual.”

    Ok, pumpkin?

  83. anon, if we were to place a bet on whether, down the road, Monsanto sues any of these plaintiffs for de minimis infringement, what odds would you give me?

    I would not be at all surprised if one of these plaintiffs makes a deliberate, direct challenge to a Monsanto patent. But I’d be amazed if Monsanto ever sues one of these plaintiffs over what was blowin’ in the wind.

  84. Defining ‘intent’ is quite a non-sequitur to the point of my post

    Of course it was, Dumpty, because the “point of your post” was just to be an effing pr–k, as usual.

  85. Malcolm, the rest of your post with “profit” of a $500 million dollar loss is so loud that I cannot hear the whisper (translation: attempted spin) of such a heavy emphasis on “intent,” especially when the intent here is for Monsanto to simply duck out of this legal donnybrook.

    When in doubt, just spew some word salad. Well played, Dumpty!

  86. As to doing things that are obviously contrary to its self-interests, well, I am not sure that such a statement can be said of any organization.

    Impressive. Keep moving those goalposts! Soon you’ll have big strong muscles, just like your mommy.

  87. Thanks Andrew.

    As to doing things that are obviously contrary to its self-interests, well, I am not sure that such a statement can be said of any organization.

    btw – the estoppel rationale is on shaky ground –

      from the very arguments that Dyk himself uses at pages 12-13

    and the very weaselly maintenance of Monsanto that “Monsanto is unaware of any circumstance that would give rise to any claim for patent infringement” and “Monsanto knows of no basis to sue Plaintiffs” – and directly in the face of Dyk saying that there is no such thing as non-infringement due to a de minimis use. This broken premise of Monsanto, cagily inserted and maintained, remains a predicate to Monsanto’s ‘assertion to leave alone,’ but necessarily fails by the decision itself.

  88. No, I am disagreeing with your “slightest change in facts” point. That suggests to me that Monsanto might test the edges of the litigation policy it submitted in this case in support of its motion to dismiss. You are correct that Monsanto could sue these plaintiffs down the road, but I submit that to do so would be insane for Monsanto. It would make no sense.

    Monsanto is not insane, nor does it do things that are obviously contrary to its self-interests.

  89. and mr.-accuse-others-of-what-you-do, you need to try again at reading my post.

    Defining ‘intent’ is quite a non-sequitur to the point of my post which challenges your version of ‘profit.’

    Or is this misrepresentation somehow an example of ‘how to read’ on your world?

  90. Sorry Malcolm, the rest of your post with “profit” of a $500 million dollar loss is so loud that I cannot hear the whisper (translation: attempted spin) of such a heavy emphasis on “intent,” especially when the intent here is for Monsanto to simply duck out of this legal donnybrook.

    Your “English as a second language” is quite stale, given the number of people that (lordy above its a miracle) understand my postings and have adopted my views – including you and your frenetic dance after the Myriad oral arguments, mind you!

  91. it seems doubtful that Monsanto would do anything if the total number of beans sold is so small that damages would be minimal).

    LOL – tell that to Farmer Bowman. How many of those big sacks of cash did Monsanto get from him?

    Oh that’s right: none.

    D’Oh!

  92. Thanks for the clarification, Oregonian.

    One wonders though, how Monsanto can make an argument for a court order to march into private property and take samples…

    This judicial decision to allow such samples, must have some basis, right? Are any samples of such Monsanto arguments available?

  93. defined

    Try defining “intent”, Dumpty.

    Or maybe just learn how to read. They do have night school for adults struggling with English as a second language. You should check it out.

  94. One percent of what? A farmer’s entire harvest, a field, a row?

    The case says “use or sell”. So if the farmer sells or plants X beans and greater than 1% are Monsanto’s patented beans, there could be some liability (and no estoppel; it seems doubtful that Monsanto would do anything if the total number of beans sold is so small that damages would be minimal).

    Time will tell if Monsanto intends to act like a smart-ss with respect to the CAFC’s decision here. I doubt it, for the reasons that Andrew mentioned. Also, I may be misremembering things, but isn’t this patent due to expire soon?

  95. I’m pretty sure that’s the argument I made here after Bowman: infringing is, for intents and purposes, strict liability — unless the Court says otherwise.

  96. Monsanto’s technology agreements allow for their representatives to take field samples, with or without the farmer’s permission. For sampling on non-licensee land, Monsanto generally gets a court order. I’m not at all accusing them of trespassing to get their samples (I don’t believe they do, despite the widespread belief that they do just that.)

  97. Monsanto’s intent to cause the “victim” to profit from knowingly selling seeds that infringed Monsanto’s patent

    On this world Malcolm, a loss of upwards of $500 million (per Oreganian at 4:18 PM) is never defined as a profit.

    You have something mixed up alright.

  98. Monsanto generally goes onto farmers’ lands and fields to grab samples for their traits

    Seriously?

    Ned, didn’t you post something about trespass…?

  99. when I answer at least as many questions as anyone else who comments here

    You do not answer the specific questions most pertinent to the discussions (context) in which the statement is made.

    You are wrong.

    Try again.

  100. Sure, the one you spew here every day about how I “voluntarily admitted” that the term “configured to” is “structural” in the context of computer-implemented junk claims.

    That’s a l i e, and so is your l i e about my “voluntary statement” being archived.

    It is no 1ie and it is archived.

    Try again.

  101. One percent of what? A farmer’s entire harvest, a field, a row? Monsanto generally goes onto farmers’ lands and fields to grab samples for their traits — how are they to determine from those samples whether there is .5%, 1.5% or 15% of the plants with traits? And is it the crop or the acreage that is the basis? The wheat farmer in Oregon stated that Monsanto’s wheat covered about 1% of his field — however, since the field was fallow, it was 100% of the wheat in the field. (I will admit that I read the decision quickly, and have a wicked nasty head cold that is clouding my thinking, but this is my area of law, so I would hope the court would not be this clueless.)

  102. We are even worse of than that now, because it’s not the offender’s intent but the victim’s actions which count!

    Not sure how you get there. If it could be proven that it was Monsanto’s intent to cause the “victim” to profit from knowingly selling seeds that infringed Monsanto’s patent, and that Monsanto’s scheme was in fact successful at causing said actions, I highly doubt that Monsanto would succeed in its infringement case against the “victim.”

    But maybe I’ve got the “offender” mixed up with the “victim” in your description?

  103. Together with the Canadian case – years ago – in which Monsanto prevailed because the farmer did sell crops from seed blown on his land, it’s clear the the “rule in Rylands v Fletcher” is a gone goose.

    Before that case it was the offender’s intent which counted, not the objective result. We are even worse of than that now, because it’s not the offender’s intent but the victim’s actions which count!

    At least where the Rylands v Fletcher has been explicitly overruled in other places, like Australia, negligence law has stepped up to fill the gap. But Monsanto seems not only able to get away with negligence of the clearest possible kind, like a trout in the milk, but can turn the legal tables on the farmers who complain. O venal city, soon to perish …

  104. One of the problems is that Monsanto claims it will not sue for infringement if “de minimus” amounts of their patented technology are present in contaminated seed, but they will not provide its definition of “de minimus”

    This case makes it pretty clear that anything less than 1% contamination will not be a problem.

  105. l i e s about you…?

    Name ONE.

    Also the l i e about me “not doing answers” when I answer at least as many questions as anyone else who comments here. The fact that I don’t answer your endless wife-beating nonsense doesn’t change the fact it’s a l i e.

    It’s pathological with you, Dumpty. See a doctor.

  106. So under Bowman and now OSGATA, that Eastern Oregon wheat farmer with the possibly-more-than-de-minimus hard, red, spring Roundup Ready wheat (MON71800) found growing in his field, upon which he practiced Monsanto’s patent by spraying it (repeatedly) with Roundup glyphosate weed killer, is infringing, innocent or not.

  107. l i e s about you…?

    Name ONE.

    Sure, the one you spew here every day about how I “voluntarily admitted” that the term “configured to” is “structural” in the context of computer-implemented junk claims.

    That’s a l i e, and so is your l i e about my “voluntary statement” being archived.

    Go ahead and keep digging, tho’, jack-ss. I know you can’t help yourself. Just look at your fine work on this thread already.

  108. changing its mind is still within the right of Monsanto – regardless of what the Judges said here.

    Is that the “slightest change in the facts” that you had in mind when you spewed your gibberish upthread, Dumpty?

  109. One of the problems is that Monsanto claims it will not sue for infringement if “de minimus” amounts of their patented technology are present in contaminated seed, but they will not provide its definition of “de minimus” (and it’s not exactly defined anywhere, as we recently learned when we included the term in proposed legislation recently.)

  110. LOL – you quite miss the point Malcolm, changing its mind is still within the right of Monsanto – regardless of what the Judges said here.

    Wake up.

  111. About $400-$500 million this year, if they can’t sell to their usual Asian markets. About 90% of soft winter white grown in Oregon is exported.

  112. Dumpty Are you conceding the point that I made?

    Time to get on your knees, Andrew, and genuflect before the great Dumpty!

  113. Monsanto changes its mind.

    Uh … I believe Andrew at 3:35 was discussing the fact that Monsanto can’t “change it’s mind”, at least not with a successful outcome, because of the estoppel effect of this decision.

    You raised the possibility that the “slightest change in facts” allow Monsanto the opportunity to avoid the estoppel. I’m asking you to provide an example of one of these “slightest change” in facts. Monsanto deciding to sue regardless of the estoppel created by this case is hardly a “slight” change, although only you know what “slight” means on your planet.

    It’s okay if you can’t provide one or are unwilling to provide an example because it would strain your limited English proficiency. Your confusion and your insults were pretty much all I expected from you anyway. I suppose now it’s time for you start telling some l i e s about me or Andrew. Have fun.

  114. Not too funny to the Oreganian farmers. I heard that they have some substantial (and very real) damages.

  115. Nope…

    Unless Monsanto argues that such a use impliedly ties the two things together.

    Oops…

    didn’t the Justices also use such language…

  116. Monsanto would be insane to dance around the edges of its estoppel with these plaintiffs. There would be virtually no upside and a mountain of ill will downside from the Federal Circuit and the trial court in this case.

  117. Monsanto changes its mind.

    Like I indicated at 2:27 PM.

    D’Oh! (said in the best Homer Simpson tones)

  118. the slightest change in facts

    Neither you nor Matt provided an example of the “slight” change in the facts of this case that you refer to. Would you be so kind to provide one?

  119. Not really.

    As Matt notes, the slightest change in facts makes this ‘ironclad’ estoppel, well, NOT.

  120. Paternalistic? What the Court did was set up an ironclad judicial estoppel defense for the plaintiffs should Monsanto ever deviate from the position in took in this case in order to win dismissal.

  121. But that doesn’t apply to system claims that cover a product sold to customers, who then use it. Seller infringes with the sale, and is liable. Customers infringe with the use, and would be liable but for the “innocent end user” commitment in my hypo above.
    (I recognize the unlikeliness of the hypo, of course.)

    And in this case, the court didn’t find that the plaintiffs had a license or a covenant not to sue (although it got close on the latter). Monsanto is free to sue them for infringement (or use their infringement as the basis for an indirect claim against others) if the facts change, even a little.

  122. I don’t see how it’s tying. You can use Roundup as an herbicide without using it on Roundup-Ready plants. You can use Roundup-Ready seed with somebody else’s version of the chemical. Neither sale is even implicitly conditioned on the other, is it?

  123. Guest, but if the active ingredient in RR is not patented, and the farmer does not buy RR from Monsanto, how is Monsanto going to tell that a field or crop has the patented gene?

    Trespass?

    Reminds me of the case where a company, lets call it HB OH, had a van that patrolled the streets with apparatus that could tune to and display what you were watching on your TV. If you were watching HP OH, but were not paying, they sued.

    Now, it might be one thing to be a pir * ate. It is quite another to systematically invade peoples privacy.

  124. It might have been patent misuse before 1982. But the CAFC’s view on misuse is pretty restrictive. Tying the Roundup Ready plants to Roundup almost certainly is not misuse – in fact, Monsanto has admitted that if you used Roundup Ready seeds and never used Roundup, they would have no idea that you are even infringing their patent.

    Now, is the sale of the patented seed exhaustion as to that generation of seed? Almost certainly (unless there’s a limited sale or something like that). But as SCOTUS noted in Bowman, that doesn’t exhaust future generations of seed.

  125. anon, when I read that story about innocent farmers being unable to sell their crop because of Monsanto’s contamination, I almost laughed. Someone actually sued Monsanto for letting its RR wheat seed spread across the US damaging foreign markets that will not accept any such genetically modified wheat to cross their borders.

    Monsanto had the effrontery to declare the spreading of its patented seeds an act of deliberate sabotage. Now that was a laugh.

  126. Matt, contributory infringement requires prove of direct infringement. A lot of method patents are only infringed by the ultimate user. If these folks have a license, there can be no contributory infringement or inducement.

  127. LB, Monsanto states they will sue people who use the active ingredient in RR on their plants. But if Monsanto sells them RR, I think the farmers have a right to use it, granting the users an implied license.

    If Monsanto adopts this scheme, what we see here is that Monsanto might be tying the use of an unpatented item (RR) to a license under a patent on the seed/crop. This might extend Monsanto’s monopoly on RR. It might not. But still it might be patent misuse.

  128. Curious as to how truly ‘binding’ the representations made (outside of any courtroom or other legal setting) by Monsanto are.

    Are they not allowed to change their minds at a future date? Of course, such a change would change the basis of the decision, but it seems a bit paternalistic of the court to use the langugae it has…

  129. In light of all the hullabaloo about patent holders going after downstream “end users,” I wonder how this might extend to where a patent holder posts a commitment not to sue end users for infringement in situations where the end users “innocently” buy and use an infringing device. Might that help prevent certain end users from challenging the patent in court or the PTO?

  130. Interesting argument, Ned. So if Samsung sells me some semiconductor manufacturing equipment (which is available from anyone, after all), I get a free license to Samsung’s patents on semiconductor devices, because Samsung made a buck on the equipment sale?

  131. Nothing implied at all with the use of the chemical. It is a public domain item, and should not even be in the calculus of any court decision – its presence only speaks to an illicit extension of now-lapsed patent rights (unfortunately, this argument was not made inthe Bowman case).

    We won’t have that issue with our patented voracious fish that will supplant all other fish and make us very very very rich (and who cares about such mundane things like wildlife diversity – bah).

  132. anon, that is the point, is it not. The chemical is available from anyone. So if Monsanto sells it to a farmer and makes a buck on the sale, the farmer has the right to use it.

    Does he not?

  133. No kidding.

    Yawn.

    This whole battle with Monsanto is a great example of people trying to change the law through the courts, and so far it hasn’t worked out at all well for them.

    They need to take their fight elsewhere.

  134. RR was a patented item and is now a public domain item Ned.

    How exactly can you reach an implied license on such a separate purchase?

    Btw, how is our voracious fish project coming along? Look at the impact to the Oregonians over the wild wheat!

  135. Jr., do you have a particular case in mind that fits this description — farmer sued for nothing more than inadvertently growing Monsanto seeds? Maybe I misread it, but the opinion suggested to me that there hasn’t been such a case.

  136. Right. So, what about the other bunches of farmers who have been sued for infringement by Monsanto when the Round-up resistant seeds have blown onto their land thereby inadvertently growing Monsanto seeds and thus becoming liable (i.e. not the farmer who buys progeny seeds to challenge Monsanto’s exhaustion)?

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