Warranty of Non-Infringement

In Bowman v. Monsanto, 133 S.Ct. 1761 (2013), the Supreme Court found that soybean farmer Vernon Bowman could be held liable for infringing the Monsanto GM seed patents. Bowman had purchased the seed from a local commodity soybean dealer and then planted them, thus making more seeds.

My question this morning is whether Bowman would have a cause of action against the soybean dealer under Section 2-312 of the Uniform Commercial Code (UCC) for violation of the warrantee of non-infringement.

UCC 2-312(3) provides a default warranty of non-infringement. The statute (as adopted by the various states) provides that:

Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications.

Assuming no disclaimer by the dealer, can Bowman shift liability back to the dealer?

See also, Merchants Warranty of Non-Infringement, IP Law Professors Rise-Up Against Patent Assertion Entities .

63 thoughts on “Warranty of Non-Infringement

  1. Malcolm and 6, I cannot respond to you directly.

    6, of course the courts would not allow a patented fish or plant intentionally released into the wild to be the basis of infringement claim. At a minimum the courts would rule abandonment. But preferably, they would cite Pierson v. Post for the proposition that there can be no damages for infringement to a wild animal unless one maintains control of it.

    MM, as to being killed by a mob for planting the fish or seed so as to control the trade in fish or food by patent, this did in fact lead to two revolutions in history: first the English civil war that was sparked by trade monopolies, and the second the American revolution that was similarly sparked by the trade monopoly of the British East Indies company.

    Also, the proximate cause of the Gandhi revolution was the salt monopoly.

    If there is a problem with patenting wild animals and wild plants. A big problem.

  2. The court ruled that the patent rights were exhausted in the particular seed, IIRC. It was Bowman’s subsequent actions that caused infringement, including retaining and selling seed in excess of the seed he planted.

    I would think that in order to find breach of warranty, the use of the seed sold would have to infringe without more.

    Best conclusion, no indemnity.

    1. Ned,

      Your answer is insufficient to address either the other manners of infringement, or the fact that the grainery seed collection is knowingly tainted.

      1. the fact that the grainery seed collection is knowingly tainted.

        Down below you said that the grainery has no idea if their seeds are tainted or not.

        Your answer is insufficient to address either the other manners of infringement

        What are the “other manners of infringement”? Selling the beans of Round-up Ready plants for consumption, where the beans were produced from GMO seeds purchased from Monsanto, is perfectly fine.

        1. (sigh) read again Malcolm- there is no way to tell of a particular grain is so tainted.

          It logically follows that since grain is known to have been sold back to the graineries from (at least) Bowman’s illicit crops, and that there is no way to tell one individual grain from another, that is must follow that ALL of the grain needs to be treated as tainted.

          And yes – selling a product (no matter what for) is still an act of infringement under the law – we are talking about more than just those seeds purchased directly from Monsanto and even the first generation of seeds that are made from those direct contract seeds.

          You really should try to catch up before you post again.

          1. ALL of the grain needs to be treated as tainted.

            So, according to you, the granaries do know that the grain they sell and label for planting is “tainted” with non-exhausted Round-up Ready seeds.

            But then they also know that the vast, overwhelming majority of the seeds are not Round-up Ready and therefore Monsanto is not going to sue them or anybody else who simply plants those seeds with the intent of selling the beans for consumption.

            So what’s the problem again?

            And by the way, this:

            there is no way to tell one individual grain from another

            is simply false. Any decent biotech lab can tell you if an individual seed has the Round-up resistance gene in it or not.

            You really should try to catch up

            You should try to catch up with everyone else.

            Fun game. You’ll start the next round as usual?

            1. Your attempt at spin succeeds only in you confusing yourself

              In fact, it’s perfectly clear that you’re the one who’s confused.

              Fun game. You’ll start the next round, as usual?

      2. anon, I think the Supremes made it clear that the patent rights in the bought seed were exhausted. It made no difference whether the seed was purchased from grain elevator or from Monsanto directly. They had the right to plant that seed and a sell the crop made from that seed. What they did not have is a right to retain the seat from that crop and replant it.

        It also made no difference to whom they sold the seed. They can sell seed to the commodity grain elevators if they wanted to. There is nothing more contaminated about the grain elevator seed than if they received the crop from a licensed planter.

        1. You are sill missing the point Ned.

          You have to move beyond what the Court looked at directly, as the issue before them simply was not the role of the grainery.

          The point that I am making is that the later generations made by Bowman – the ones that are not exhausted DO fine their way back to the grainery, and THEN any sale of such items WILL be patent infringement, based on how the Court ruled that Monsanto saw no benefit in Bowman’s later generations and those later generations were not exhausted. Your statement of “They can sell seed to the commodity grain elevators if they wanted to” is clearly wrong. Any sale of those later generation non-exhausted seeds that does not benefit Monsanto does not exhaust he patent rights in those articles. They remain non-exhausted in the sale from Bowman back to the grainery, and then are mixed in with all the other grain. The grainery selling the later generation non-exhausted seeds is patent infringement (sale or offer for sale).

          You are off because you are not tracking the later sale. Review the archives of the discussion and note how I outline for you multiple sales and multiple generations.

          1. anon, because of exhaustion, the farmer has a right to sell first generation seed to anyone.

            Now, confining our conversation to crops from withheld and replanted seeds, these are infringing. If sold to the grain elevator who then sold it to any farmer, even the first generation seed would indeed be infringing and the grain elevator would indeed be subject to a suit for breach of warranty.

            Moreover, because the seeds are indistinguishable I would think any sale of the commodity seed would infringe. Thus, Monsanto would have an action for infringement against any grain elevator who sold seed after obtaining seed from Bowman.

            To trump that, every farmer who bought seed from the grain elevator would now infringe, and all their crops would infringe, etc., etc., etc. Soon, everyone would infringe.

            We need Spangenberg.

            1. (sigh)

              Ned, “Now, confining our conversation to crops from withheld and replanted seed” is exactly what I am trying to stop you from doing.

              That is why you are missing the point that I am making.

              Q: What exactly happens to the Bowman product (later generation seeds)?

              A: Bowman sold most of that product to the graineries.

              Q: What did the graineries do with this non-exhausted prodcut that they bought from Bowman?

              A: They mixed it in with the other seeds in the grainery and then SOLD and OFFERED FOR SALE non-exhausted patent-covered items.

              Q: What do you call the sale or offer for sale of non-exhausted patent covered items by someone other than the patent holder, someone who has no contract with the patent holder to sell or offer to sell those non-exhausted patent covered items?

              A: Patent Infringement.

            2. Moreover, because the seeds are indistinguishable I would think any sale of the commodity seed would infringe. Thus, Monsanto would have an action for infringement against any grain elevator who sold seed after obtaining seed from Bowman.

              Bingo.

  3. Arguably, the seeds Bowman bought weren’t themselves encumbered by Monsanto’s patent rights. It was the next generation of plants/seeds that were encumbered, and Bowman didn’t buy those – he grew them.

    1. Sorry APOTU,

      You cannot escape liability so easily – see my post below.

      There simply is NO WAY to assume that any particular seeds in a grainery are the particular seeds that Monsanto – by their own written contract – allowed back into the stream of commerce.

      Once tainted – as is done when the graineries:
      1) buy the infringing articles made by Bowman in Bowman’s second season plantings (a fact on record is discernible that Bowman did not keep every such found-infringing seed) and then
      2) mix them in an uncontrolled manner with all other seeds in their collection,
      the taint remains.

      This is the basis of my running humor with Ned about a plan to patent a voracious species of fish and let loose that species into the wild, supplanting all other commercial fish and de facto capturing the world’s fish market.

      Ned, status?

      1. Sorry APOTU, You cannot escape liability so easily

        Unless I missed something, beans harvested from plants sprouted from Monsanto’s patented seeds are still being sold by granaries, just as they were before Bowman’s suit. Should they be worried about being sued by Bowman (or someone like him) for indemnification? Has Monsanto identified other “Bowmans” and sued those farmers or somehow caused them financial damage?

        1. Malcolm stumbles…”Unless I missed something,

          Yes. You have missed something.

          I will let you try to catch up on your own pace.

          1. You have missed something. I will let you try to catch up on your own pace.

            I think it’s you who’s missing something.

            Fun game. I’ll let you start the next round, as usual.

            1. Not sure why you think this is a “fun game” as clearly my other posts here provide a level of substantive merit that you do not even come close to approaching.

              Your smarmy and vacuous comment is not conducive to, well, anything.

            2. my other posts here provide a level of substantive merit that you do not even come close to approaching.

              I think mine are far more substantive.

              Fun game. You’ll start the next round as usual?

        1. Thanks Ned, but our project was not geared to lobster.

          If you remember, we were aiming for a voracious fish that we could let loose into the world and that would replace all other indigenous fish species, giving us complete control of the world’s fish supply.

          1. we were aiming for a voracious fish that we could let loose into the world and that would replace all other indigenous fish species, giving us complete control of the world’s fish supply.

            And then what?

            1. MM: “Then what?”

              Why Malcolm, isn’t it obvious? Anon and I would form a patent holding LLC in Delaware and commission Spangenberg to sue every restaurant or supermarket in the US that is marketing our patented fish/lobster.

              Why of course, we would engineer our patented fish with easily identified markings to distinguish other fish of the variety making proof of infringement as easy as monitoring the sale of RR to soybean farmers.

              If our patented fish is what we think it is, it will soon replace all unpatented fish so that everyone in the US will soon be paying higher prices for fish to pay our royalties, and make Anon and I, as well as Erich, superrich.

              Which brings up the question, why didn’t Monsanto send up night mission planes and scatter its patented seed far and wide. Wait a few years for the seed to become part of every crop, and then descend with Spangenberg in the role of avenger against a host of pirate farmers.

              Now there’s a plan.

            2. “Which brings up the question, why didn’t Monsanto send up night mission planes and scatter its patented seed far and wide. Wait a few years for the seed to become part of every crop, and then descend with Spangenberg in the role of avenger against a host of pirate farmers.

              Now there’s a plan”

              I’m not 100% sure that a court would smile upon this behavior should it have gotten out.

            3. Ned: If our patented fish is what we think it is, it will soon replace all unpatented fish so that everyone in the US will soon be paying higher prices for fish

              Who will they be paying? Both of you would be in jail or killed or both.

              why didn’t Monsanto send up night mission planes and scatter its patented seed far and wide. Wait a few years for the seed to become part of every crop, and then descend with Spangenberg in the role of avenger against a host of pirate farmers.

              Because enough people h@te Monsanto already?

            4. Ned, still misses “with easily identified markings to distinguish other fish

              Would not need tha t- the point of patenting the new fish is because the new fish is extremely voracious and would naturally replace all other fish, leaving only our fish as food. Not only that, we let it loose back into nature and use nature’s natural mechanisms to replicate our patented item.

              Do you know how much of the world’s diet we would have cornered…?

              (and your Monsanto plan isn’t half bad – but I was trying not to draw attention to that plan since we don’t have those patents)

  4. Assuming no disclaimer by the dealer, can Bowman shift liability back to the dealer?

    It seems it would depend on what the dealer told Bowman about the seeds when he sold them (i.e., “these are Round-Up ready seeds so you may want to talk to Monsanto if you’re thinking about planting them to produce more seeds”), or whether Bowman already knew (or should have known) that the seeds were Round-Up ready when he purchased them from the dealer.

    It’s been a while since I researched the UCC but if you know or suspect that an item you are purchasing is, e.g., “hot”, I don’t think you get a pass on liability just because you purchase from a naive dealer or from a dealer that tells you everything is cool even when you have good reason to know that it’s not.

    1. Not following the point you are attempting Malcolm…

      If you quote Prof. Crouch to the point of “assuming no disclaimer” why then talk about disclaimer (“seems to depend“) ?

      Further, the existing fact pattern already provides that Bowman acted to ascertain that the seeds were Round-Up ready by applying the patent-expired-and-in-the-public-domain chemical. And (critically) the grainery itself clearly has no way of knowing which particular seeds may be exhausted and which particular seeds may not be exhausted, and thus “Knew or should have known” is off the table.

      The ‘hot’ argument cannot apply in the Professor’s given situation (or, if you do want to expand beyond that point, and want such to apply, then the “hot” argument must apply to ALL grainery seeds – see my posts on that particular train of legal thought). Also, naiveté of a dealer does not shield from any other action in a strict liability situation.

      1. If you quote Prof. Crouch to the point of “assuming no disclaimer” why then talk about disclaimer (“seems to depend“) ?

        There’s no disclaimer of liability in my discussion.

        Bowman acted to ascertain that the seeds were Round-Up ready by applying the patent-expired-and-in-the-public-domain chemical.

        Right. Bowman knew exactly what he was doing with the beans he purchased and planted: trying to avoid paying Monsanto for them.

        the grainery itself clearly has no way of knowing which particular seeds may be exhausted

        All you have to do is ask the farmer who’s selling the beans where he got the seeds and how he grew the crop.

        naiveté of a dealer does not shield from any other action in a strict liability situation.

        Unless I’m mistaken, the granaries are allowed by Monsanto to sell Monsanto’s beans for the purpose of consumption. What “strict liability” situation are you referring to?

        1. Unless I’m mistaken, the granaries are allowed by Monsanto

          You are mistaken.

          1) the graineries have no contract with Monsanto – there is no “allowed to sell” for any particular use (and you are conflating the already questionable point about graineries being ‘allowed’ to sell only for consumption, as well as incorrectly implying that the graineries need to ask anything of anyone selling them anything – secondary markets do not require any such proposition, notwithstandingn the fact that should be construed against Monsanto that Monsanto does not even request the farmers they directly sold to to inform the grainery – so even if such was there (and it is not) you cannot contractually bind a third party). Your mistake then is multi-layered.

          2) the graineries sell more than what Monsanto has themselves produced (the many later generations created by Bowman – and others – and then sold to the graineries – and you do not recognize the mixed bag of such exhausted and non-exhausted product that the graineries Know or Should Know that they have (since they actively buy from such people as Bowman).

          I suggest that you spend some time (as much time as you need) to first catch up before you post.

          1. 1) the graineries have no contract with Monsanto – there is no “allowed to sell” for any particular use

            Of course the granaries are allowed to sell seed for consumption. Nobody would grow Monsanto’s seeds if that wasn’t the case.

            the graineries sell more than what Monsanto has themselves produced/i>

            That’s nice. The issue is selling patented seeds for purposes other than consumption. There are labeling requirements for both.

            You seem to struggling with some hypothetical scenario that you created in your mind but which does not exist nor is there any reason to believe it’s going to occur in the future (e.g., Monsanto or some third party sueing a granary because it unknowingly sold a Round-up seed intended for consumption to a third party, where the third party then plants the seed to avoid buying seeds from Monsanto).

            you do not recognize the mixed bag of such exhausted and non-exhausted product that the graineries Know or Should Know that they have (since they actively buy from such people as Bowman).

            I do recognize that. I also recognize that if Bowman knowingly grows Round-up treated GMO soybeans and sells him to the granary, he’s supposed to tell the granary that fact and also where he got his seeds. If the granary then sells those seeds to other farmers with the label “Round-up ready seeds intended for planting”, then the granary has a problem.

            The farming industry is fairly well-regulated, you know, for a great variety of reasons.

            1. Of course the granaries are allowed to sell seed for consumption. Nobody would grow Monsanto’s seeds if that wasn’t the case.

              You make ASSumptions and offer no proof.

            2. You make ASSumptions and offer no proof.

              What assumption did I make for which you need proof?

              Or, if it bothers you to be asked obvious, follow-up questions, please accept this alternative response:

              It’s you who is making the aSSumptions and offers no proof. Fun game! You’ll start the next round, as usual? Of course you will. And David Stein will never object.

  5. One avenue of (possible) rebuttal is captured in the phrase “goods of the kind

    During the trial, stress was attempted to be placed on alternative uses of the seeds, such as for grainery sold seeds to be used as feed for animals or ground into food.

    While such alternative uses clearly exist, such do not (and cannot – given the long historical practice of second season planting) eliminate the fact that a use – a perfectly normal and expected use – of buying seeds from a grainery is to plant those seeds to naturally make more seeds (yes, this is a point I made previously).

    A question to be answered (and potentially easily answered by Bowman or his counsel) is: “Did the grainery sale contain an explicit clause not to engage in what otherwise would be a natural use of seed?

    .

    A separate thought to be entertained: can the original contract – drawn up by Monsanto between Monsanto and the original farmer – be construed against Monsanto in that Monsanto explicitly allowed farmers to let the seeds back into an uncontrolled stream of commerce? Granted, the contract between Monsanto and a farmer cannot legally constrain a party not involved with the contract (the third party grainery), but Monsanto allowed the farmer to do something – sell to graineries without a requirement that the farmer attempt to bind the granieries as to restricted uses.

    Funny that, that completes the circle and brings us right back to the exhaustion doctrine and one intent of that doctrine to protect secondary markets – the vary market that Monsanto would have had to try to impinge on if it were to write the contract with the farmers to control subsequent sales and restrictive uses.

    Ned, we may have to move quicker with our patented voracious fish project if a natural conclusion of letting something that naturally replicates loose into the stream of commerce is taken as a de facto exhaustion.

    1. I think that footnote 1 of Bowman v. Monsanto answers the question (though I’ve read elsewhere that some think this is an inaccurate statement of the law): “Grain elevators, as indicated above, purchase grain from farmers and sell it for consumption; under federal and state law, they generally cannot package or market their grain for use as agricultural seed. See 7 U.S.C. § 1571; Ind.Code § 15-15-1-32 (2012). But because soybeans are themselves seeds, nothing (except, as we shall see, the law) prevented Bowman from planting, rather than consuming, the product he bought from the grain elevator.”

      If that’s true, then the warranty of non-infringement would only apply to consumption, not to planting, since the grain elevator was not selling the grain for that purpose, and was theoretically barred by law from doing so.

      The question is whether a court would enforce a warranty for an off-label, potentially illegal, infringing use. I would guess not most of the time, but you never know.

      1. Michael,

        You may be correct that the statement “they generally cannot package or market their grain for use as agricultural seed” is inaccurate, based on a personal sampling of calls I made to graineries. No such policy was in place.

        The point about “the warranty of non-infringement would only apply to consumption, not to planting” speaks directly to my past points concerning the nexus of sale with the invention that underlies both protection and exhaustion. If the use for which the sale is made pertains to the nexus of the invention, then exhaustion should apply. Second season planting – whether or not permitted – is an historically well known use.

        Bowman may not have clean hands – and that may affect the argument in an attempt to shift liability as noted in this thread.

        But my previous point gains further traction as to a separate liability that graineries have: they, unwittingly or not buy the much later made generations of seed and sell and offer to sell a product that has not had that particular product (being a newly made item) exhausted and they are guilty of the strict liability offense of patent infringement (apparently de facto, given that Bowman was found guilty).

        A court will not have the option of not enforcing that type of patent infringement liability, will they?

      2. You may be correct that the statement “they generally cannot package or market their grain for use as agricultural seed” is inaccurate, based on a personal sampling of calls I made to graineries. No such policy was in place.

        Which granaries did you call, exactly what did you ask them and exactly how did they respond?

        The cited law is right here and seems to jibe with the Supreme Court’s footnote:

        link to in.gov

        IC 15-15-1-2
        “Agricultural seed” As used in this chapter, “agricultural seed” means the seeds of legume, grass, forage, cereal, fiber, or oil crops.

        As used in this chapter, “labeling” refers to the use of labels or other written, printed, or graphic representations in any form accompanying or associated with a lot of seed whether in bulk or in containers. The term includes any representations on an invoice

        IC 15-15-1-31
        Exceptions from labeling requirements
        Sec. 31. (a) Sections 32 and 33 of this chapter do not apply to the following:
        (1) Seed or grain not intended for seeding and sowing purposes. However, treated agricultural seed must be labeled in accordance with section 32 of this chapter when sold to any person for any purpose whether the seed is in containers or in bulk.

        (b) A person is not subject to the penalties of this chapter for distributing agricultural or vegetable seed incorrectly labeled or represented as to kind, variety, or origin and that cannot be identified by examination of the seed unless the person fails to:
        (1) obtain an invoice, genuine grower’s declaration, or other labeling information; and
        (2) take other precautions reasonable to ensure the identity of the seed as stated.

        IC 15-15-1-32
        Agricultural seeds; information for purchaser; label; bulk purchase
        Sec. 32. (a) A container of agricultural seed of any size consisting of more than one (1) pound distributed in Indiana for sowing and seeding purposes must contain or have attached in a conspicuous place on the outside of the container a plainly written or printed tag or label in English giving the information required by this section. If the seed is distributed in bulk, the information required by this section must accompany delivery and be supplied to the purchaser at the time of delivery.
        (b) The labeling required for seed sold in bags and packages, and in bulk as required by this section, must include the following statements on the labeling attached to the container:
        (1) The commonly accepted name of each kind and variety of each agricultural seed component that exceeds five percent (5%) of the whole and the percentage by weight of each in the order of its predominance…
        (2) Lot number or other lot identification.
        (3) Origin (state or foreign country where grown) for all seed except hybrid corn. If the origin is unknown, that fact must be stated….
        (9) The name and address of the person who labeled the seed or who distributed it within Indiana.
        (10) For all seed named and treated (for which a separate label may be used):
        (A) a word or statement indicating that the seed has been treated;
        (B) the commonly accepted coined chemical or abbreviated chemical (generic) name of any applied pesticide;
        (C) a description of the process or the commonly accepted name of the substance applied if other than a pesticide; and
        (D) if the substance in the amount present with the seed is harmful to human or other vertebrate animals, a caution statement such as “Do Not Use For Food Or Feed Or Oil Purposes”. A poison statement or symbol must be used as the caution for mercurials and similarly toxic substances.

          1. Google the top ten midwest graineries. Ask them if they sell grain for second season planting.

            Why? I never asserted that graineries don’t sell seeds for planting. Of course they do. So what.

            We’re talking about a much more specific assertion that you made.

            Specifically, you made an assertion upthread about some granaries you called specifically asking them about their policy regarding labeling of seeds that they sell. I’m asking you to identify the names of those granaries, exactly what you asked them, and exactly what they told you.

            This is what is known as a “fair question.” Let me know if you think there’s something unfair about it. Or you can continue to hurl insults. Your choice. You don’t want to make David Stein and Patent Guru sad, do you?

        1. Malcolm,

          The point is not that there are laws regarding marking.

          Nor is the point that those items sold and marked for consumption should be used for consumption. If you read my post you would have (should have) noticed that I allowed for that.

          The point is that the footnote purports to be a law that rules out the use from a grainery of seed for planting.

          That is just not so – and that is the point that I made here and made during the original discussions.

          A valid use of seed from a grainery is for planting. The footnote intimates that such is not a valid use, and no such sales would take place (at all), and this is clearly incorrect.

          (something about purposeful obfuscation comes to mind…)

          .

          Michael, one reason why this flaw is important is another flaw in the legal logic, tying a sale (the purpose of the sale – albeit an authorized sale, which can be taken to mean that the patent holder receives some benefit from the sale) to the nexus of the invention when considering whether or not exhaustion takes place. The Court did a bit of a dodge around the replication factor by focusing on the ‘make a new one’ line of thought. The replication factor is still there and (besides the attempted obfuscation by Malcolm) there is no way for a grainery to tell the difference between a first generation seed (which Monsanto’s written contract allows to be sold to a grainery – WITHOUT RESTRICTION (that is, not requiring a marking difference for future use ONLY for consumption), and any other N+ generation including the likes of non-exhausted seeds from Bowman and other farmers.

          Without a doubt, undifferentiated (and non-exhausted) grain – is available for sale and offered for sale by graineries for more than just consumption.

          The graineries may very well be on the hook not only for direct infringement, but for the UCC violation on the sale of this N+ generation non-exhausted grain mix.

          And that, after all is the point, yes?

  6. Great subject – a certain anonymous poster has made comments along these very lines in the past ;-) and the augmentation with the UCC is pretty darn sweet.

    As was noted at the time, Bowman cannot (or perhaps more correctly should not) be legally implicated if what he did was to apply a patent-expired chemical – open on the market for the various purpose that chemical exists, that is, to kill weeds (also as noted, the chemical has ZERO to do with anything except kill weeds – it does not change or complete the seed and the seed still does what the seed always did – the oft mentioned nexus with the invention, sadly overlooked by the Court).

    Another yummy offshoot here is as I have noted that this might also defuse some of the “Troll” witch hunting in that while still maintaining what it means under the law to infringe (that is, “use“), a mechanism less intrusive on the property rights of patentees may already exist to serve the proffered intention of the laws now under consideration in Congress.

    Something that may play out if the notion of taking of property rights ever reaches a judicial decision on the standard to be applied by the Supreme Court**

    **with a tip of the hat to that great named poster on another well-known blog.

    1. Correction:

      for the various purpose that chemical exists

      should read:

      for the exact purpose that chemical exists

    2. anon, if a late season planter plants commodity seed, harvests and resells it, there is no infringement.

      Infringement occurs only when the farmer retains seed from that late season crop and then retains and resells. The retained seed is not covered by exhaustion and was not sold by the grain elevator.

      Now lets turn to Monsanto. They find a farmer planting, retaining and reselling infringing seed. The farmer is not using Roundup Ready, but conventional weed killer not knowing that his crop is partly made up of the patented seed. Regardless of the technical infringement, Monsanto might not be able to collect any damages. The Canadian Supreme Court decision is on point here.

      Add to the above that the farmer uses RR or a variant. This purifies his crop. The sale of the infringing crop causes damage to Monsanto.

      It would be interesting to see what would happen if Monsanto allowed farmers to retain and replant, so long they used Monsanto RR. Now that might be tying.

      1. It would be interesting to see what would happen if Monsanto allowed farmers to retain and replant, so long they used Monsanto RR. Now that might be tying.

        That does sound like tying, Ned.

      2. Ned, you incorrectly state “if a late season planter plants commodity seed, harvests and resells it, there is no infringement

        There are several levels of possible infringement.

        You are missing the point that Bowman sold the seed he made (the non-exhausted seed) back to the commodity sources, who then turned around and resold the non-exhausted items.

        That is unequivocally infringement on the part of the commodity seller.

        The farmer who then takes that infringing seed and makes more seed also infringes – that is a direct take-away from Monsanto’s victory.

        You are adding a new fact pattern with the ‘retained seed’ that has absolutely nothing to do with any of my posts.

        Further, I find it odd that you think a Canadian Supreme Court decision as any bearing on US law. I am at a complete loss as to how you made that jump and united the two nations of the US and Canada under one new law.

        1. anon: Bowman sold the seed he made (the non-exhausted seed) back to the commodity sources,

          Bowman infringed the patent. That’s Bowman’s problem.

          who then turned around and resold the non-exhausted items.

          For consumption. If they were led to believe by Bowman that the Round-up ready seeds which led to Bowman’s crop were purchased from Monsanto (or an authorized dealer of Monsanto’s) then the liability again is on Bowman.

          That is unequivocally infringement

          I suppose you’re also “unequivocally infringing” my patent on a tomato juice-dyed shirt if I dump a can of tomato juice on your shirt. What do you think will happen when I try to sue you?

          Also, didn’t the Supreme Court recently address some of the unique issues raised by the sale of “self-replicating” patented beans in a recent case? I seem to recall something along those lines.

      1. Perhaps, just perhaps, there is an assumption of patent inflation when what is actually happening is the simple recognition of a larger scale economic movement reflecting a change in valuation for certain assets – from the hard goods as exemplified by factories to the soft (or intangible) goods that provide a stronger leverage.

        I would offer the counter position that the growing recognition of the strength of the patent right is not – and should not – be confused with some notion that patent rights are expanding (and the subsequent notion that the expansion therefor must be reined in).

        1. “Perhaps, just perhaps, there is an assumption of patent inflation ”

          It isn’t really so much an “assumption” or a “presumption” as it is an “observation”.

            1. 6 – try reading (for the first time?) my post and you won’t have to ask me to ID anything.

              Malcolm, why the undies in a bunch? “Lemming” is my special term of endearment for 6. A well earned and accurate term no less. No reason for you to be sad. Well, at least beyond the typical ones like you cannot get the law straight, I mean.

            2. “Lemming” is my special term of endearment for 6. A well earned and accurate term no less.

              My term of endearment for you is “psycho nutcase.” It’s a well earned and accurate term, no less.

              Fun game. You’ll start the next round, as usual? Please let David Stein you are leading the way here with the attempts to be civil. He’ll appreciate that, I’m sure.

            3. “6 – try reading (for the first time?) my post and you won’t have to ask me to ID anything.”

              I did not notice any false premises in your first post. I saw you make an assertion that something was a false premise, I then noted it was an observation, you stated that “observation(s) based on false premise(s) [are] meaningless”. I am now asking you specifically what false premise you believe that the observation of patent inflation is based upon.

      2. That’s a response to a rather great article: link to yalelawjournal.org

        Though I’m not sure that I’m down with their hypothesis. Frankly I think it’s just that both the PTO and the Fed. Circ. have grown into an anything goes, wild west approach to patentability. Either that or the expansion has largely come about through incompetence, the source of 99% of government mischief. Though I appreciate them having put forth an alternate hypothesis. It even sort of absolves the court and the PTO of responsibility for these occurrences.

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