Without More, Product Supplier has no DJ Jurisdiction for Protecting its Customers against Infringement Litigation for Using Product

By Dennis Crouch

Cisco Systems, Inc. v. Alberta Telecom (d/b/a TR Tech) (Fed. Cir. 2013)

In a non-precedential opinion, the Federal Circuit has extended the Supreme Court’s recent holding in Nike v. Already with reference to patent cases. The result here is that Cisco customers continue to face patent infringement liability for using Cisco products, but that Cisco cannot file a declaratory judgment lawsuit to clear its distribution chain from litigation threats. Although ostensibly following MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007), the appellate court here retreats at least from more liberal interpretations of that decision. The case is interesting because it appears that the holding here is substantially based upon an offered covenant-not-to-sue seemingly made by TR Tech’s counsel during oral arguments on appeal. This parallels the court’s recent decision in Organic Growers v. Monsanto where the court also relied upon statements made during oral arguments in order to make its decision. It is unclear whether this strategy is the proper way for the court to handle appeals especially because the law is not well settled with regard to the binding effect of unprepared oral statements made during appellate oral arguments. In the Monsanto case, the court wrote:

If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel. It is well-established that a party who successfully argues one position is estopped from later adopting a contrary position in a case involving the same patent.

In reality, I don’t believe that the notion of judicial estoppel is quite a clear-cut as the judges appear to believe here.

The basic setup in this case is that Cisco’s routers form an integral part of most computer networks. And, TR Tech’s patents cover a particular network configuration facilitated by Cisco routers. TR sued various Cisco customers for infringement and alleged that the infringement was based upon those defendants’ use of Cisco routers. In response, Cisco filed a declaratory judgment lawsuit against TR – seeking judgments of patent invalidity and noninfringement. The district court dismissed the case – finding it “difficult to tell from the record [of the customer lawsuits] whether a justiciable controversy yet existed between Cisco and TR Labs.” In the appellate oral arguments, TR Tech stated that the company had “”no basis for suing [Cisco] either for direct or indirect infringement;” that Cisco’s routers have substantial non-infringing uses; and that TR Labs would be “happy” to give Cisco a covenant-not-to-sue Cisco for infringement of any of the asserted patents. (To be clear, it does not appear that any covenant-not-to-sue has been effectuated). The court writes:

It is understandable that Cisco may have an interest in saving its customers from infringement contentions premised, even in part, on their use of Cisco products. In the circumstances presented here, that interest is simply insufficient to give rise to a current, justiciable case or controversy upon which federal declaratory judgment jurisdiction may be predicated.

In writing the opinion, Judge O’Malley is somewhat careful to distinguish two recent Federal Circuit opinions: Arkema Inc. v. Honeywell International, Inc., 706 F.3d 1351 (Fed. Cir. 2013) and Arris Group, Inc. v. British Telecommunications PLC, 639 F.3d 1368 (Fed. Cir. 2011). In Arkema, the Federal Circuit allowed the DJ-plaintiff to add newly-issued patents to the DJ action and in Arris Group, the court found DJ-jurisdiction based upon patent lawsuits against customers that included indemnification claims against the DJ-plaintiff as well as pre-litigation allegations of infringement by the patentee against the DJ-plaintiff. None of those factors existed here.

66 thoughts on “Without More, Product Supplier has no DJ Jurisdiction for Protecting its Customers against Infringement Litigation for Using Product

  1. Anon, what bothers me is that the bill in Congress appears to allow MFGs to have standing to sue for non infringement and stay the customer actions even if they do not indemnify their customers.  If they win, all is fine and dandy.  If they lose the customer is left holding the bag, with an adverse judgment of infringement against them.  All that needs to be done is proceed to willfulness and damages.
     
    Query, for the sake of argument, suppose the MFG loses on validity and infringement.  We know that the customer cannot re-litigate infringement.  But can they re-litigate validity?
     

  2. Ned,

    Malcolm is disagreeing not based upon any existing law, but on his ‘value’ determination of patents in general and his desire for the law as he would wish it to be (based heavily on his belief that patents are the worst thing ever).

    He ignores the actual law (and the presumption of validity) and thinks that anyone anywhere who in anyway even suspects a patent is invalid should have the right to challenge that patent in court.

    Not that he personally would actually take any affirmative action – he does not care about any ability to challenge in the PTO (given that he has for years QQ ed about patents on blogs, but never got off his duff and did anything about any of his posted patents in the Office).

  3. MM, If Cisco is not liable for infringement, they have no standing.  Period.  I don’t know why you disagree.  Can you cite even one case were an meretricious interloper was allowed into court to contest the validity of a patent with no skin in the game? 
     
    Besides, they can file a request to reexamine or an IPR, their choice.  Neither requires standing AFAIK.
     
     

     
     
     

    • That’s certainly true if the law regarding standing (which seems too restrictive in this context) remains unchanged.

    LOL – seems? But why? Oh, I see, because Malcolm merely says so – how very Carroll of him.

    But please, turn around and accuse Ned of doing exactly what you are doing.

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

  4. Would you be so willing to embrace the other side of that sword Malcolm and eliminate the concept of substantial non-infringing uses as protection of staple goods against charges of infringement?

    You need to articulate the “concept” you are referring to a bit more carefully. You can’t sue a “staple good” for infringement of a patent in the US.

    It’s true that a party can’t be sued for infringing a method claim merely because it owns, sells or uses a composition that could, theoretically, be used to carry out the claimed method but which has other substantial non-infringing uses. That makes perfect sense. Nobody questions this rule.

    That rule, however, doesn’t seem to have much at all to do with the situation we are describing here except that it suggests that Cisco has an even better argument for standing to challenge a method (or “system”) patent asserted against its customers if, in fact, its customers require Cisco’s products/services to carry out the claimed methods.

    There is also, of course, some not insignificant public interest in removing invalid patents from the system. That should be taken into account when formulating policies about standing.

  5. Malcolm, if they refuse to indemnify their customers and they lose business, I think they lose business not because of the patent but because of their policies.

    That’s certainly true if the law regarding standing (which seems too restrictive in this context) remains unchanged. The “current policy” requires Cisco to indemnify its customers before it can challenge the validity of a patent that is being asserted against people because those people are using its services/products. I think that policy is too restrictive.

    If they are not infringing and they are not liable, they do not have standing.

    That’s not an argument, Ned. That’s just a conclusion about when standing is appropriate.

  6. Malcolm, if they refuse to indemnify their customers and they lose business, I think they lose business not because of the patent but because of their policies.   Standing requires a justiciable controversy.   If they are not infringing and they are not liable, they do not have standing.
     

  7. Would you be so willing to embrace the other side of that sword Malcolm and eliminate the concept of substantial non-infringing uses as protection of staple goods against charges of infringement?

    Or does your predilection only run against the patent holder?

    (that was rhetorical)

  8. Ned: Once they have agreed to indemnify the customer, and they are liable for the customer’s damages, then they have standing

    I agree, and it’s reasonable for Cisco to have standing in that situation. But I don’t see why it’s necessary unreasonable for Cisco to have standing to challenge the validity of a patent where Cisco can demonstrate that the patent is a direct cause of the loss of its customers. It seems that in that circumstance Cisco would have a “reasonable relation” to “the situation” ((e.g., the “situation” where a patent is asserted against Cisco’s customers and the customers would not be liable for infringement but for their use of Cisco’s products or services) that would justify conferring standing to challenge the patent actually being asserted.

  9. You confuse the source of absurdity – it not lay with my replies, but to the posts that I reply to.

    And I can understand your seeming lack of knowledge between truth and spin, as you spin so much you do not know which way is up.

  10. I have repeatedly told you how to control the level of my posts

    Indeed, you have told just about everyone here numerous times that if we stop giving you reasons to insult us, then you will stop insulting us. Suffice it to say the precise terrain on which those “reasons” lie has indefinite bounds. Or it’s just absurdly broad.

  11. Malcolm, if the customer can go to others and buy equipment that will allow it to be in a noninfringing position, or if other suppliers sell licensed apparatus, then Cisco certainly has an incentive to protect its customer – and they should do so by indemnifying that customer. Once they have agreed to indemnify the customer, and they are liable for the customer’s damages, then they have standing and should have a right to file a DJ action or intervene, their choice.

  12. Given Quanta, patentees can no longer afford to deal with “contributory infringement” manufacturers who sell components of larger, patented systems where the value of the invention is great in the larger system, but where the manufacturer cannot afford to pay to the patentee the full value of their customer’s use.

    Years ago, I was involved in the case where a supplier told us that they could not afford to indemnify us in a case involving “contributory infringement” for this very reason. The product we sold was sold at a price at least 10 and perhaps 20 X the price of the component. The damages we would have to pay might be greater than the total revenue received by the supplier for selling the product to us. That could put the supplier out of business.

    Besides the above, that supplier made a cogent case to us that they were not liable for contributory infringement even though it was their product that placed us into infringing position, because that product had substantial noninfringing uses. (This is one of the reasons why I think whether the product has substantial noninfringing uses is a relevant, or should be irrelevant, in the case of direct supply between one company and another company. Here, the person supplying the component that causes the infringement should be liable as a contributory infringer unless the customer specified that the supplier include the infringing feature.)

  13. If Cisco cannot be found liable even under a theory of contributory infringement, what business did they have in seeking a DJ that they do not infringe? But this is what they sought. Your logic which finds contradiction here is flawed

    It’s not “my logic”, Ron. The statements (yours and Andrews) which I quoted in my comment are contradictory, on their face.

    I think what happened is that I misunderstood what you actually meant to say. I see now (please correct me if I’m wrong) that you were putting yourself in Cisco’s shoes and arguing Cisco’s DJ “strategy” when you wrote that “Cisco could be liable only under contributory or inducement theories.” In fact, it seems that you agree with TRTech that even under those theories, there is no possibility of dining contributory or inducement liability with respect to the cited patents. That’s certainly what Andrew was saying (or seemed to be saying).

    Your logic … assumes that Cisco sought a DJ to merely invalidate a “junk patent.” They did not.

    That’s also not “my logic”. That’s just my attempt to understand what Andrew meant when he wrote “It’d be nice for marketing purposes to have a clean shot at the validity of the patents at issue”.

    Cisco appears to believe that the patents are invalid, or at least believes that it has a chance of invalidating them in court. You do understand that the claims of an invalidated patent are dedicated to the public upon invalidation, don’t you? Unless you are the owner of the patent (a fantastically tiny fraction of the population), that’s a positive event for everyone.

    Thankfully, in our legal system third parties do not get to simply file a declaratory action seeking to invalidate a patent just because they regard the patent invalid.

    Of course, that’s not the circumstance in this case. In this case, Cisco’s customers are being sued for patent infringement, the lawsuit names Cisco’s products in parts of the infringement contentions and some of Cisco’s customers might find another provider to replace Cisco if they can avoid infringement by doing so. That seems (arguably) like a reasonable enough relation to the harm involved if the patents are, in fact, invalid. I’m not sure everyone needs to be “thankful” for the holding given these facts. But, yes, people who own method and “system” patents who want to sue Cisco’s customers should be thankful, I suppose.

  14. Ron, the courts will eventually construe this legislation, if passed, to require standing of the manufacturer. If the manufactures has not been accused of infringement and his customer has not even requested indemnity, not only will his DJ action be dismissed as here, but in motion to intervene will be denied. This is constitutional, not statutory.

  15. MM I think there is no case and controversy if the patent owner has not accused a manufacturer of infringement and one of its customers has not requested indemnity.

    Also, in my experience, most manufacturers will not offer indemnity for contributory infringement. So even a “claim” for indemnity in some cases may not be enough if the contract excludes it. I would think that the manufacturer would, at a minimum, have to agree to indemnify before we know that it will be liable for its customer’s damages.

  16. With respect to a stay in favor of a manufacturer’s DJ action, the statute drones on and on about product this and process that without ever saying the magic words that the covered manufacturer would be fully liable for all damage caused the patent holder by the customer.

    That said, if the covered manufacturer is liable for even part of the damages of his customer by reason of indemnity, he should be allowed to intervene in the action against his customer. But, this is routine today as such motions to intervene are routinely granted.

    Now, many of us think end user when we think customer. In most cases, a sued customer himself is a manufacturer or a provider of goods and services to end users. As I said before, here, the value of the patented invention can and will be different depending on the value of the invention to the manufacturer or service provider that in turn sells to the end user. Pretending that ever use of a patent invention has the same value, and is entitled to the same royalty is the central problem with this legislation.

  17. Ron, I see your point about the IPR. The legislation appears to allow the Covered Mfg. to both DJ and file an IPR, while congress intended the infringer choose one or the other.

  18. LOL right back at you Malcolm – As I have repeatedly told you how to control the level of my posts – but that takes you to post in intellectually honest ways.

  19. Thanks for the advice Ron. Here though, I enjoy a certain amount of giving back to the blog bullies.

    LOL.

    Nice try, Ron. Better luck next time.

  20. MM,
    There is no contradiction here. If Cisco cannot be found liable even under a theory of contributory infringement, what business did they have in seeking a DJ that they do not infringe? But this is what they sought. Your logic which finds contradiction here is flawed as it assumes that Cisco sought a DJ to merely invalidate a “junk patent.” They did not. Thankfully, in our legal system third parties do not get to simply file a declaratory action seeking to invalidate a patent just because they regard the patent invalid. They must be real parties to a justiciable dispute involving the patent.

  21. Thanks for the advice Ron.

    Here though, I enjoy a certain amount of giving back to the blog bullies. In fact, dragging Malcolm into discussions of substantive law has the tendency of his burning down his own agenda (and the bonfire makes a great source for roasting marshmallows). Trust me, they would love to have no one point out their silliness, and it is actually quite easy to point out their fallacies and hypocrisies.

  22. Anon,
    Thanks for the kind endorsement. My guest post you linked to is a summary of my full paper linked above. But those who cannot spend the extra time to read the full longer version would thank you for posting the link above. Thank you.

    As to you being called names, I would not be defensive about it prospectively when nobody had actually done that – it only invites such conduct. Even if they do so in the future, please do not get dragged into such ad hominem attacks on these pages – it is best to ignore them and keep such clutter of this blog.

  23. LOL – yes, people like Shrivan, Vivika M., and the bunch that usually end up with their own CRP in their noses.

    That’s OK – those are not the people that I really need to have like me in the first place.

    And where are your insults for Ron, now? After all, he’s painting Cisco in some unpleasant light (you know, like the attack from the Right which earned my the quote above when I showed that others feel as I do?) and he is of that selective crowd that you distaste – you know the one, the one that supports patent rights and the law (and not your imaginary ‘law’).

    LOL – ever the internet tough guy you are Malcolm. Still unable to resist your childish insistence on name-calling instead of using a proper moniker?

  24. other individuals … have become self-righteously indignant when any negative posting has been made concerning their comments

    It just seems that way to you, TB. And we all know why.

  25. Ron: Cisco could be liable only under theories of contributory infringement or active inducement

    Compare:

    Andrew: TR Labs readily concedes, and has conceded for some time, that Cisco is not an infringer under 271. Not directly, not as an inducer, and not as a contributory infringer. Cisco had no reason to believe it would ever face liability for infringement of the patents at issue.

    Seems that there is some contradiction here.

    Andrew suggests that the Cisco DJ case was about “marketing” (not exactly sure what Andrew meant by that; possibly they could generate goodwill by showing that they cleaned the surface of the earth of a few j*nk patents?).

  26. the onslaught against my feelings continues unabated

    Like it’s completely random. People just don’t seem to really like you, TB. Probably because they are jealous of you, right?

  27. Thanks Ron.

    Your ongoing support for patentees and a proper working system is greatly appreciated.

    You humbly neglected to mention your guest post at link to ipwatchdog.com

    I say these kind and deserving words at the ‘grave’ risk of being called names by certain individuals (which really really really hurt my sensitive feelings), and note that the onslaught of such names seem invisible to other individuals who have become self-righteously indignant when any negative posting has been made concerning their comments – truth of such posting notwithstanding – and note that the onslaught against my feelings continues unabated, with such colorful quips as:

      “Maybe Tr0 llb0y will go f*k himself again.

    which continue to appear on multiple threads.

  28. Ned,

    Footnote 2 of my article contains a link to the House press release, which at the bottom of the page has a link within the text “a copy of the discussion draft can be found here.”

  29. Ron, I think one can sue a manufacturer for contributory infringement without naming a customer, provided that one also proves direct infringement. So, a do not see anything fundamentally wrong with a contributory infringer having standing for a DJ action if

    1. The patentee has accused him of contributory infringement.

    2. His customer has requested indemnity.

    Now, issuing a stay of the customer suit is problematical if the patentee cannot obtain full relief against a contributory infringer. I will assume that he cannot in cases where the value of the patented invention to the customer greatly outweighs the value to the manufacturer.

    General Pictures Co. v. Electric Co., 304 US 175 – Supreme Court 1938, link to scholar.google.com

    clearly stands for this proposition. The royalty for private use of a patented vacuum tube can be made different than the royalty for commercial use.

    The stay of a customer suit would then operate on the ASSUMPTION that the value of an invention to a customer is invariant and that the patentee can and should obtain full and complete compensation from a manufacture.

    That proposition clearly is wrong in fact and in law.

    We need to oppose Congress legislating a lie.

  30. Cisco filed the DJ apparently to “protect” its customers, attempting to invoke the “Customer-Suit Exception.” Based on my understanding of telecom equipment supply contracts, Cisco most likely had not indemnified their
    customers. Without such formal indemnity, Cisco could not show standing to
    stay the case against their customers, ostensibly Cisco’s main purpose.
    Filing instead an IPR as Paul Morgan suggests here, would not have stayed the action against their customers either. However, Paul’s comment using the word “instead” correctly indicates that under current law these options are mutually exclusive.

    In any event, Cisco’s attempt to stay the customer suits appears logically and legally infirm on its face for another simple reason. It sought declaratory judgment of noninfringement and invalidity of the TR patents. However, the TR patent claims at issue are directed at networks themselves (i.e., system claims) and methods performed on the networks.
    Cisco’s customers are alleged direct infringers; because Cisco could be liable only under theories of contributory infringement or active inducement, the “manufacturer” DJ proceeding cannot advance until there is a complete resolution of direct infringement by the “customers” – showing of induced or contributory infringement requires proof that some other party directly infringes. Deepsouth Packing Co. v. Laitram Corp., 406 U.S.
    518, 526 (1972). A stay in the customer suit is therefore equivalent to freezing substantive advance in resolving the underlying dispute. This is why courts invariably refuse to grant stays known as “customer suit exception” in situations involving a combination of directly infringing customers and indirect supplier infringers.

    But ‘do not let your heart be troubled’ – Cisco and others have a way of “fixing” that “problem” – a problem of how to evade indemnity liability while still being able to obtain a stay in their customer proceedings. They recently proposed legislation for mandating courts to stay customer suits, including in situations of this very case – ensuring that a patentee remains in limbo. In Section 5 of the Goodlatte Bill – “Customer-Suit Exception” – proposed 35 U.S.C. § 296(c)(1)(B-D) would mandate a stay of a “customer” proceeding, precisely in situations where such customer’s direct infringement is essential to deciding contributory infringement claims in the “manufacturer” proceeding.

    And while they were at it, proponents of Section 5 of the Goodlatte bill also “fixed” another “problem.” They propose to repeal for customer suit exceptions the existing AIA prohibitions of §§ 315(a) and 325(a) against instituting IPR or PGR in parallel with a civil action to invalidate the patent. Their proposed 35 U.S.C. § 296(e) would enable a “covered manufacturer” to challenge the patent at the PTO under § 311 or § 321 while a court proceeding challenging the validity of that patent is ongoing. This is an end-run designed to roll-back the hard-fought compromises on IPR and PGR reached in the AIA.

    See more details on this legislative effort that no one is talking about in my PCTJ analysis of the proposed mandatory stay legislation at link to bit.ly

  31. You have no idea, have read my posts and think I am the one on a tangent?

    LOL – Who is this that told you that you have pretty good skills? Keeping It Real? Shrivan? one or maybe a few more of your own svckpuppets? Here’s some advice: don’t listen to those voices. Instead of being far too eager to *click,* try instead just a little bit to actually read.

    Try again, or for the first time, as the case may be.

    (and who is this TB person you keep referencing? I don’t see anyone posting under that moniker – is he another voice for you?)

  32. At last: a clear, realistic, relevant and helpful comment on the subject decision and its context in business world reality.

  33. maybe they will pick on a penny-less 70-year old + independent farmer. I’ll bet they will get lots of bags of cash from him…

    The Bowman case wasn’t driven by any “bags of cash” that Monsanto would get from Bowman.

  34. Monsanto’s statements mean nothing because of what the judge said in the decision.

    That’s your conclusion, TB. I have no idea how you got there. Maybe you should type it an all bold and caps?

    your thoughts that are tangential to what I have written,

    My thoughts were posted at 2:38 pm. You’re the one going off on a tangent.

    have you even read my posts?

    Yes.

    What kind of language skills do you have?

    Pretty good ones, I’m told. What do people think of your language skills? Oh right ….

    Try reading . s l o

    *click*

  35. What became abundantly clear at oral argument was that TR Labs readily concedes, and has conceded for some time, that Cisco is not an infringer under 271. Not directly, not as an inducer, and not as a contributory infringer. Cisco had no reason to believe it would ever face liability for infringement of the patents at issue.

    This was all about Cisco’s customers, and the allegedly infringing uses to which they put Cisco’s products — products that TR Labs concedes have substantial non-infringing uses.

    I’m guessing there are Cisco customers that would be more than happy to let Cisco assume the defense costs and potential liability of taking on a fight against TR Labs. I doubt, though, that Cisco wants to indemnify for potential customer infringement liability. But that’s what Cisco will have to do if it wants to have a federal court resolve these validity and infringement issues.

    Because, Cisco, this is a case and controversy between TR Labs and your customers, not you. It’d be nice for marketing purposes to have a clean shot at the validity of the patents at issue without fear of infringement liability, but the federal courts’ jurisdiction is limited to cases where parties have skin in the game.

  36. Exactly what statement are you referring to?

    LOL – Seriously? What kind of language skills do you have?

    Try reading . s l o w l y . the first two posts.

  37. so you don’t want to answer the question I asked or address the facts in this case

    Funny thing Malcolm, it is you that have not addressed what I have written. You have posted your thoughts that are tangential to what I have written, but have you even read my posts? You do not seem to grasp the fact that Monsanto’s statements mean nothing because of what the judge said in the decision.

  38. Okay, so you don’t want to answer the question I asked or address the facts in this case. That’s fine. Why not just say so? Why beat around the bush?

    you really think that Monsanto’s statement was made with absolute, unequivocal knowledge?

    Yes. The knew what they were saying, they knew why they were saying it, and they understood the consequences of their statement. What makes you think otherwise?

    he statement could be maintained as such after the Judge said point blank otherwise

    Exactly what statement are you referring to? If I’m not mistaken, in failing to find jurisdiction for the DJ case, the Federal Circuit relied, at least in part, on Monsanto’s statement before the court that it has no intention of sueing farmers whose crops include a few stray round-up resistant plants. No judge “said otherwise”.

  39. If they thought the patent was invalid, and had filed an inter partes reexamination instead of a DJ action they could have saved a lot of money and avoided this “Catch 22″ result. Nowadays one has to use an IPR, but it is still a lot cheaper than a DJ action, and faster than a reexamination or most D.C. trial date dockets.

  40. You might sy the soil particulate is of sand nature; on every man is a son or son man, k.no.w man able to vector on all knowledge simultaneously, hence son-man; so, son.man.too.. drop one of the Os because of the zygote-otsonman.monsantoo is half monkey business. (half corret)

    ACTION EX DELICTO

    AD DA*NUM

    (HOW would PeeWee Herman handle this case?)
    link to abajournal.com

  41. Monsanto is bedded to the surface of the planet

    I think it more accurate to say that Monsanto is concerned, and thus bedded, with things that go under the surface of the planet.

    You might even say their tactics are under a rock, and should not see the light of day.

    Or if they do sprought, that the plant that grows in the rocky soil will soon wilt.

  42. made with absolute unequivocal knowledge that it’s being offered as a true statement with profound, immediate legal effects

    except the truth of the statement offered is not accepted by the judge in the immediate case.

    What legal effect then?

    And you really think that Monsanto’s statement was made with absolute, unequivocal knowledge? That the statement could be maintained as such after the Judge said point blank otherwise?

  43. If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel. It is well-established that a party who successfully argues one position is estopped from later adopting a contrary position in a case involving the same patent.[]double.ease to the attorneys ten years hence[]

    Monsanto is bedded to the surface of the planet..extant…

    Myriad: The Implications of the U.S. Supreme Court Decision///da*n boundaries persist///
    [[[molecules are eligible for patent protection, but that a sequence of DNA molecules isolated from their natural state is not]]]
    link to ipo.org

    [][step precedure works both ways][]

    link to uspto.gov

  44. a statement – built on error and on its face not applicable to any legal situation

    A statement built on error? What? A statement “on its face not applicable to any legal situation”? Huh?

    I’m talking about a statement, in court, under oath, made with absolute unequivocal knowledge that it’s being offered as a true statement with profound, immediate legal effects for the entity responsible for the statement. The question is whether the utterer of the statement can then immediately turn around and contradict itself in the same courtroom, without consequence. If you don’t want to answer that question, that’s fine. Just say that you don’t want to answer that question.

  45. Made it’s bed?

    LOL – the one the judge threw out? Monsanto is laughing hysterically at Judge Dyk. They gave up a fault-ridden worthless word. Good luck with that.

  46. Monsanto seems to be speaking out of both sides….

    In reality, I think Monsanto will only go after a farmer who uses RoundUp Ready or an equivalent, and who doesn’t have licensed seed.

    As we discussed, the Supreme Court seemed to inject scienter into the law of direct infringement such that innocent, but direct, infringement of Monsanto’s patents are immune from liability.

  47. LOL – and if that very same ‘decisive’ statement has a plain error as a foundation, and what if hte Judge in the case corrects that error in his decision (but does not change the statement made by the lawyer), what then? Such a statement – built on error and on its face not applicable to any legal situation going forward is as binding as…

    …what exactly?

  48. LOL – maybe they will pick on a penny-less 70-year old + independent farmer. I’ll bet they will get lots of bags of cash from him…

  49. ee can all wonder why Monsanto refused (and continues to refuse) to agree to any covenant not to sue…

    I’m not wondering. Monsanto doesn’t need to waste its time. Monsanto made its bed in court.

    But do let everyone know when Monsanto sues one of those farmers for “allowing” a couple round-up resistant plants to grow in his/her field. That will be a very interesting case to follow. I’m not holding my breath.

  50. Dennis: the law is not well settled with regard to the binding effect of unprepared oral statements made during appellate oral arguments

    A lawyer represents a company in court. The lawyer, well aware of his duty of candor, makes a statement to the court, voluntarily, with complete understanding of the implication that his/her statement will have on the outcome of the case. The court accepts the statement. At no point prior to the publishing of the opinion in the case does the lawyer or any representative of the company seek to have the statement retracted or corrected.

    How is it then possible for the same company to flatly contradict its decisive statement, made in court, and achieve a successful result under the same legal system? It seems fairly “well-settled” that such a statement is as binding as any “formal” contract could ever be. What am I missing?

  51. Or as posted previously:

      Monsanto: “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.

    And then we can all wonder why Monsanto refused (and continues to refuse) to agree to any covenant not to sue…

  52. In reality, I don’t believe that the notion of judicial estoppel is quite a clear-cut as the judges appear to believe here.

    In reality, what happens when the foundation of the assertions (Monsanto’s) are basically pointed out as containing error and will not stand on their own (Judge Dyk – de minimis is still infringement), which error the Judge corrects in his decision – after the assertion?

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