By Dennis Crouch
Bowman v. Monsanto (Supreme Court Docket No. 11-796, 2012)
In 2011, the Federal Circuit again affirmed that Monsanto’s genetically modified seeds patents can be used to stop farmers from saving and replanting the GM seeds. The farmer, Vernon Bowman, then petitioned the Supreme Court asking for a writ of certiorari – presenting the following question:
Patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale. In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose – namely, for planting. The question presented is:
Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?
In its brief-in-opposition, Monsanto reformulated the question as follows:
Whether the Federal Circuit correctly ruled that Monsanto’s patent rights in biotechnology related to genetically modified plants (here, patented technologies that make soybeans resistant to glyphosate-based herbicides) are independently applicable to each generation of soybeans embodying the invention, such that a grower who, without authorization from Monsanto, creates a new generation of genetically modified soybeans infringes Monsanto’s patents.
CVSG: Now, the Supreme Court has invited the Solicitor General to file briefs expressing the views of the United States in the case. This is a significant step toward grant because it shows some interest in the case. Typically a call for the views of the Solicitor General (CVSG) requires the vote of at least four justices. However, those votes appear to be easier to obtain than a vote to grant certiorari or a vote to reverse the lower court. A study of 30,000 petitions reported that a petition on the paid docket is four times more likely to be granted once the Court calls for a response. Thompson and Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 George Mason L. Rev. 237 (2009). In his study of patent cases, Professor Duffy found that the SG’s opinion is extremely important in predicting whether the Supreme Court decides to hear a case on the merits. John F. Duffy, The Federal Circuit in the Shadow of the Solicitor General, 78 Geo. Wash. L. Rev. 518 (2010).
DOJ – USPTO – FTC – ETC.: The USPTO would almost certainly agree with the Federal Circuit’s opinion and recommend against a grant of certiorari. Of course, the Supreme Court is not asking the opinion of Raymond Chen (USPTO Solicitor General), but rather the opinion of Solicitor General of the United States (acting on behalf of the US). In the power struggle, the USPTO is only one voice and may well lose-out here to other interests (as it has in other recent cases). In 2005, the SG (then Paul Clement) filed a brief in the parallel case of McFarling v. Monsanto recommending that the petition be denied. The McFarling petition did not focus on exhaustion. However, in a footnote the SG brief noted that “whether (and, if so, to what extent) the patent-exhaustion doctrine applies to restrictions on the use of a materially identical patented product that was produced by the patented product sold by the patentee” is “novel.”
Mark Walters of Frommer Lawrence & Haug is lead counsel for Bowman. Seth Waxman is counsel of record for Monsanto.
…movies… you are confusing your copywrite infringement with patent law.
anon, I have agreed here with Bad Seed, and in the past have agreed with Malcolm, where they have convinced me of their positions. I try always to give credit where credit is due (here and at work), and will acknowledge that they have convinced me.
I wish I knew who Bad Seed was because he, like Malcolm, is now on my A list. I pay attention to what they say because when they are passionate about an issue, they generally are right.
Regarding you and me, we seem to dance around issues rather than engage. Perhaps some of that is my fault. But, you will note that both Bad Seed and Malcolm clearly and simply stated their positions, and if challenged, they provided a longer explanation. I would hope you adopt the same approach with me.
Kudos Ned.
Often you are maligned – and rightfully so – for sticking to your arguments beyond any sense of reason.
It was refreshing to read this thread and see you actually accept someone else’s reasoning.
I have hope, then, of someday perhaps having you return to my three questions on software and have you embrace them with the same “open” state of mind.
analysis, I have been thinking on this a bit. This is what I now think is right:
1) Planting a seed is using the seed.
2) The plant produced from the seed is produced by natural laws and phenomena: only in a vague, God-created-the-universe-so-he-created-you-and-me sort of way, is the planter of the seed a maker of the plant. In general, natural law makes the plant from the seed, not man.
3) the seeds produced by a patented plant are not made by man; they too are products of nature.
While the patents laws may protect artificially made bioorganisms, they certainly do not protect natural phenomena. Nothing in Chakrabarty suggested anything to the contrary; and Prometheus only reinforces the concept.
One can only concluded that the USPTO position to allow the patenting of plants and animals that are asexually reproduced is ultra vires. They have allowed patents on the products of nature.
Yes
I would posit then that the troika of Univis, Quanta, and Prometheus indicate a losing position for Monsanto.
Would you agree?
I understand the widget reference. I also understand how Try Again turned that very reference to be more on point to the instant case by morphing your example to include both the inventive aspect and the doctrine of exhasution as that doctrine relates to the immediate case and its facts.
I await your answer to Try Again’s question because it is most definitely not a strawman as I understand that term. The question incorporates the praise you have given to Bad Seed in a larger context of an invention with self-replication capabilities.
It is very much on point to how I think the Exhaustion Doctrine will be applied.
analysis, you are right about IANAE. ping idolized him.
Further, I agree about this thread. It has been an excellent discussion.
analysis, I will fully consider your views here. I will not respond right now, as I will think about them for a bit first.
However, I applaud you for the high quality of your post. Thanks.
analysis, I agree with the Fordham article, and so does the Supreme Court. There is no other explanation for the Quanta decision where exhaustion occurs when less than the whole invention is sold, but the part sold is, in essence, the embodiment or heart of the invention.
I remember Ping. Crude, but effective. I do not remember him clashing with MaxDrei, and I do remember him idolizing IANAE.
However, given the group of posters, I am not surprised that someone finding fault with one would find fault with the others. In fact, you have grouped the people together on more than one occasion.
Be that as it may, I see no reason to make this thread one of sockpuppets. I think that BigGuy is quite incorrect in his view that nothing of merit has been unearthed on this thread. To me, it has been one of the more enlightening threads of late.
analysis, I think you are referring to Aro II. I am referring to Aro I.
However, I was struck by Harlan's dissent. In a nutshell, what is reconstruction depends on the facts..
"
For more than a hundred years it has been the law that the owner of a device covered by a combination patent can, without infringing, keep the device in good working order by replacing, either himself or through any source he wishes, unpatented parts, but that he may not, without rendering himself liable for infringement, reconstruct the device itself, whether because of its deterioration or for any other reason, and even though all of the component parts of the device are themselves unpatented. Wilson v. Simpson, 9 How. 109; Cotton-Tie Co. v. Simmons, 106 U. S. 89; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U. S. 425; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325; Heyer v. Duplicator Mfg. Co., 263 U. S. 100. The underlying rationale of the rule is of course that the owner's license to use the device carries with it an implied license to keep it fit for the use for which it was intended, but not to duplicate the invention itself. Correlatively, one who knowingly participates in an impermissible reconstruction of a patented combination is guilty of contributory infringement. "Direct" and "contributory" infringements are now codified in § 271 of the Patent Act of 1952. 35 U. S. C. § 271.[1]
370*370 In this case the District Court and the Court of Appeals upon full consideration have concurred in finding that Aro's replacement-supplying of the fabric portion of respondent's convertible automobile tops contributorily infringed the latter's territorial rights under the valid Mackie-Duluk combination patent, in that such activity constituted a deliberate participation on Aro's part in a forbidden reconstruction of the patented combination. In reversing, the Court holds that there can be no direct infringement (and hence, of course, no contributory infringement) of a combination patent by replacement of any of the components of the patented entity unless (1) such component is itself separately patented or (2) the entire entity is rebuilt at one time. Since the fabric cover component of the Mackie-Duluk top was not itself separately patented, and since it constituted but one part of the patented combination, the Court concludes that Aro's supplying of such covers for replacement on cars equipped with respondent's tops did not as a matter of law constitute contributory infringement.[2]
371*371 My Brother BRENNAN'S opinion, while disagreeing with that conclusion, would reverse because on its view of the record, untrammeled by the contrary findings and conclusions of the two lower courts, it is concluded that what 372*372 here took place constituted "repair" and not "reconstruction" of the Mackie-Duluk tops.
I am unable to subscribe to either of these views.
I.
I believe that the narrow concept of what constitutes impermissible reconstruction, reflected in the opinion of the Court, departs from established principles—principles which, it will be shown, were approved by Congress when it enacted § 271 of the new Patent Act, over objections of the Department of Justice altogether comparable to the position which it now advances as amicus in the present case.
The all-important thing is to determine from the past decisions of this Court what the proper test of "reconstruction" is, for I agree that 35 U. S. C. § 271 (c) limits contributory infringement to that which would be direct infringement, and that § 271 (a), dealing with direct infringement, leaves intact the pre-existing case law. The cases cited above amply demonstrate that there is no single yardstick for determining whether particular substitutions of new for original unpatented parts of a patented combination amount to permissible repair or forbidden reconstruction. The matter is to be resolved "on principles of common sense applied to the specific facts" of a given case, Heyer, supra, at 102. The single simple rule of "reconstruction" which the Court finds in those cases can, in my view, only be divined at the expense of reconstructing the decisions themselves.
As I read Bad Seed’s position, it is not as you state “Thus planting the seed is using the seed, NOT making a plant” but rather that the use is planting AND making. It is not an EITHER OR, but a BOTH.
This is a subtle, but important point because the Coourt’s application of the Exhaustion Doctrine on the facts of this case will in my opinion come down on the fact that these two facets are joined together. If one looks at the aspects of the inventive concept, that inventive concept is only realized in the use of planting, and the fact that a natural law is involved from the fact of planting to the action of making will, in the light provided from the fires of Prometheus, show that the exhaustion of one necessitates the exhaustion of the other. In this sense, the Court’s view in Univis Lens 316 U.S. 241 (1942) is most on point. The capture of the patent’s essential features in the first sale is not doubted. This has been stated by several posters on this thread, and I have seen no counter argument to dissuade me.
analysis, "and then plants or sells the 'purified' patented seed." The act of purification itself is not infringement. This is the point that seems to evade.
You do not seem to see that the planting or sale of a pure crop of patented seed actually harms the patent holder. The other does not.
I like the analogy to "fair use" in copyright law on this point.
I belive that the new fact htat you are attempting to interject into the Post case would raise the very question the case takes for granted as answered: that possession is clear.
There is no basis to interject this new fact, neither in the current discussion nor in the Post case.
This appears to be an attempt at fanning the embers to produce more smoke.
The portion of the case wherein the Court discusses the contract by Ford. See, for example p 377: “The patent owner’s attempt, in the agreement with Ford, to reserve the right to license future replacement sales was invalid, since he cannot, in granting the right to use patented articles, impose conditions as to unpatented replacement parts to be used with those articles.”
As a bonus to the discussion, I have noted your submissionof several articles and wanted to answer in kind. Given the number of Supreme Court case over the last few years, and especially the notion of invnetive aspect emphasized in Prometheus, I thought you might enjoy the article by Bernard Choa located at:
link to ir.lawnet.fordham.edu
As mentioned above, the widget example was introduced by you. I read the Country Lawyer post(not Country Farmer as I posted in error) to address the desire by you to use the terminology of “purify.” I noted that you had been asked twice to refrain from using such a loaded term, but declined.
You indicate that you never suggested that someone culling seeds would be guilty of infringement.
This clearly is not true. For example, see your posts at least at:
4/9 at 11:35 AM and at 5:57 PM,
4/12 at 7:17 AM and at 4:35 PM, and
4/13 at 11:38 AM, at 11:45 AM, and at 6:44 PM.
I cannot divine that you did not realize the extent of the position you have clearly taken. Someone who buys and plants a mixed bag is not an infringer while someone who buys but processes a mixed bag to achieve a separation of the seeds into two different types is guilty of infringement.
I thought the use of gumballs in the example was a clever way to distinguish the two varieties and does not “move the goalposts” from the position you had taken. It is a device that chieves clarity and sharp contrast.
My bet is still on Country Lawyer.
Analysis, the Aro case did not contain an unrestricted sale of a convertible car? This is news to me. Could you please reference the portion of the case that made this point?
Analysis, but my widget example had nothing to do at all with my suggestion that a farmer who invented some process to purify the crop of a field planted with undifferentiated commodity seed into a crop consisting substantially only of the patented seed might be considered an infringer by selling or planting that substantially "purified" seed.
The widget example was in reference to the fact that one buying a widget is not granted a license to manufacture widgets, or even to remanufacture the widget he did buy.
The contracts being discussed and compared are from each of the Court cases. The contract in Aro Mfg. must be applied in light of the facts of that case. It is inapposite at best to draw a conclusion counter to the facts presented and ineffective at most to expect that conclusion to hold up under scrutiny.
As you indicate, this case includes an unrestricted sale. The Aro case did not. It is an important difference that should not be, as they say, lost in the weeds.
Analysis, so your point seems to be that control of a wild animal is sufficient for one to have a property right in that animal. This suggests that if another harms the animal in question, or takes away, that the first person might sue for damages. But what if the second person has no notice whatsoever that the animal in question is under your control?
The widget example is yours Ned Heller. You introduced it Reply Apr 13, 2012 at 06:21 PM
Try Again answered your post and posted a question which you have evaded answering.
I am only pointing out that you have evaded something you proposed. I would like to see you answer the question.
analysis, your widget example suggested that purification of existing seed by separation of two apparently identical seed varieties in a basket was an act of infringement by itself. I never suggested it was.
But, from a botany point of view, how does one achieve a basket consisting of only the seed of the patented plant from a crop of a field of plants that sexually reproduce and therefore do not necessarily have the genes of its parent?
Second, because plants sexually reproduce, how can one prevent the "patented" gene of interest from migrating from a field having only the patented plant to an adjacent field that consists only of unpatented plants? Isn't it just a matter of time that the patented gene of interest spread by operation of the laws of nature throughout the entire world?
analysis, we have been and are talking at all times here about an unrestricted sale. What contract are you talking about?
Your widget example has nothing to do with anything I said. It is a strawman at best.
Bad Seed, see my post below at 01:04.
I give you a lot of credity there and I will here.
You have made a convincing argument. I am persuaded.
Thanks.
BigGuy, I know. They do this with me, Max, Malcolm, IANAE and 6, among others. Ping used to do the same thing to all of us and we all agreed to simply not respond to him. He disappeared, but we think he may still be here using the annoying descriptive monikers. All of us have asked Dennis to do something about the pest as he or she really degrades Patently O.
Big Guy, to a great extent, I agree with you that many sock puppets are nothing but trolls who do exactly as you say they do. Still, there are some who perhaps are genuine posters actually try to make genuine arguments and who do make telling points. This thread is full of such posts.
The best point made by anyone in this thread is made by Bad Seed. He observed that the primary utility of a seed is to be planted. Thus planting the seed is using the seed, not making a plant. (The plant is made by nature using a natural process.) Therefor, even under the Federal Circuits own reasoning wherein use rights are exhausted, the unrestricted sale of seed exhausts the patentee's use rights in the seed, thereby allowing it to be planted by right.
who do nothing but contradict you, regardless of what you say
This is not true. Ned has been the most vocal, but those raising points to counter what Ned has said have not been contrary regardless. Rather, the counter points have been clear, lucid and poignant.
If you want to illuminate the topic, I recommend that instead of posting a negative comment about someone else making comments that you get involved with a meaningful comment yourself.
took my post out of context for a reason
I see no reason to believe this is out of context. You used a conjunctive to identify two items that you sate must be met and the poster showed the case did not require both.
This is a clear and on point post refuting your offered logic.
Why the smokescreen reply?
Thank you. Maybe Ned will stop now.
I see no movement of goalposts.
I see destruction of “purify” and a conflation of patent topics.
My bet’s on Country Farmer.
it’s s contract question – not an absolute. that’s why you need to look at the facts of each case.
You did not answer the question:
Does the use of the widget necessitate that it creates more of itself during normal use in order to fulfill the intent of the patented item?
and how it affects the instant case.
BigGuy,
And what exactly have you brought to the table?
Nada
And least Ned tries.
See?
You STILL don’t understand Chakrabarty.
How can you be so obtuse?
Obtuse. Is it deliberate?
Ned, the only thing that is “self-evident” from this thread is that you really need to get a more fulfilling job and give these boards a rest. 90% of this thread consists of you “discussing” this topic with a half-dozen sockpuppets who do nothing but contradict you, regardless of what you say. Perhaps you’re entertaining yourself, but you and your sockpuppet interlocutors are certainly not illuminating the topic.
Perhaps a non-IP-related hobby is in order?
In the linked article, the legal debate on the patenting of sexually reproduced animals and plants did not fully discuss the issues that are quite apparent here. Canada alone in the world held the Harvard mouse unpatentable.
link to law.washington.edu
Time to reconsider.
I think it is self-evident from this thread that there are significant, fundamental problems with patenting sexually reproducible plants and animals. This leads me to believe that sexually reproduced plants and animals must be classified as things OF nature regardless that they may be genetically altered products of man. As we know from virtually all Supreme Court cases discussing the exceptions to patentable subject matter since 1852, one cannot patent phenomena of nature. Chakrabarty made it clear that plants and animals were phenomena of nature. Chakrabarty did not exclude the patenting of the bioorganisms in that case simply because they were alive. However the question of whether the bioorganisms, even though they were made by man, still remained phenomena of nature or things of nature because they sexually reproduced was not a question they considered. It is time the Supreme Court considered this question.
Clearly, Aro is pertinent because one has no right to reconstruct, i.e., remake a patented product. Clearly, the sale of an item does not exhaust the right to make that item.
Country, It is amazing just how far you moved the goalposts there.
Not MM, the point of Aro Manufacturing is that the sale of a patented product does not exhaust the make right. There is no right to rebuild the very thing sold.
Aro: http://scholar.google.com/scholar_case?case=14679629603309035961&q=Aro+manufacturing&hl=en&as_sdt=2,5
“I peek in this thread to find the majority of commenters wiping the floor with none other than Ned Heller…..
AGAIN!!”
It’s Ned Heller hunting season.
Wow!
I peek in this thread to find the majority of commenters wiping the floor with none other than Ned Heller…..
AGAIN!!
What is it with you Ned and these merciless beat downs?
You a glutton for punishment or something?
Looks like it’s time for you to accuse everyone of being me, AI, and cut and run.
Ned Heller says:
“If a farmer “purifies” the seed stock so that it consists is substantially of only the patented seed, and then plants it or sells it, that farmer is an infringer.
I am not so sure of your position wrt to commodity seed, which is an uncertain mixture of patented and unpatented seed.”
I would love to see you in court with that argument. First I would ask you for a proper citation to the exact law that gives you support for your legal assertion. Then after you hem and haw and make up some bull answer, I would dispose of that citation, turn to the judge and say:
Your Honor, I go to the store and, without reservations or limitations of any kind, buy a bag full of mixed widgets and gumballs. I come home and in the privacy of my own farm, carefully lay out a sanitary blanket, empty the bag onto the blanket in my field and hand pick out, cull, “purify” the widgets into one pile and the gumballs into another. I then put the widgets into one bag (and the gumballs into another that I gift wrap for you since I know your Honor is partial to gumballs), walk over to my neighbor and sell him the bag of widgets. The very same widgets I bought less than an hour before with absolutely no reservations or limitations.
Your Honor, Ned Heller wants to make this an act of infringement. He says this “purification” violates the patent right of making the widgets even though no new widgets were actually made. He has supported this accusation with no citation of law, and no hope of anything except harassing me and wasting your Honor’s time.
Ned Heller, I think my chances of seeing you thrown out on your ear and me awarded special damages are pretty darn good.
Three times you have referenced Aro Mfg. as if it is some magic bullet to this discussion.
Please explain why the repair/replacment case has any bearing on the facts of this case.
[grabs softdrink]
I almost hxte to ask, but Ned, what possible insight does Aro Mfg supply given the facts of that case?
I hope you do you realize that that case deals with the repear/replace question and has contractual constraints that simply do not apply to the case at hand wherein Monsanto relinquished all contractual holds with its allowance for naked sales.
Self-propagation is simply not at issue in that case.
But please, provide the citation and your impression of the holding of that case and how it affects the instant case.
[grabs popcorn]
Do not confuse “need” with “enjoy”.
Try again.
Ned,
First, I changed none of the facts, as I merely listed options that make a better fit than your draconian NO SALES doomsday view (which btw, would fall to the same type of “change the facts” that you now accuse me of). You are the one who made up this “not allowed by Monsanto fact out of thin air (and btw, accuse me of having that as a necessary premise). All I did was make the situation more realistic without your false alarmist view.
Second, You did not answer my question. I asked why you think the Monsanto people did not push for control on the progeny seed.
Assume for the moment that there is a reason not to. What would that reason be?
“part and parcel with your attitude that everything you say is the law and that you are always right ”
Actually, I am always right. I make sure of that before I post.
As for what I say being the law, that’s a bit too egotistical, even if what I say is the law, it is not the law because I say it. I can see where you might get confused, as I am never wrong and the correlation simply boggles your mind, but let me set you straight, my words do not create law (at least on this forum).
But please, I enjoy your attempts at humor. Try again.
You have ignored what You Are What You Eat said at 1:28 PM.
He gave a perfectly reasonable explanation as to why the phrase is not apt at all in a patent discussion.
Aren’t you all about trying to engage in a discussion? Why then do you purposefully drive the wrong way down one way streets? Do you enjoy making inane arguments? Or maybe you enjoy the attention your inane arguments generates. Be honest, you want me to care about you. You are screaming for attention and will do and say anything to get it.
But the least you can do is try to apply a little legal skill and thought in your posts and not make it so easy to make fun of you.
Try again.
Try, I see. Part of your psychological makeup it seems. You need to continue to prove to me, and to others it seems, that you are always right.
Now, let me look that up in my handbook of mental disorders….
Don’t mistake making fun of you with caring for you.
Posting about what you think is fun because it is an easy way for me to maintain my record of always being right.
Why do you think I always invite you to try again?
Try again.
Now you are changing the facts.
Of course Monsanto can do all that and it should if it wants to continue to control the seed.
One wonders why the good patent attorneys inside Monsanto didn't figure this out long ago.
Try, of course not. No one cares what I think. So please stop posting about what I think as if it made any difference to anyone. As you say, no one cares.
Kinda like eating your cake and having it too?
Try, please explain to us, oh wise one, what Occam means by patent exhaustion. Then explain what you mean.
Then explain Aro Mfg.
“ Since that cannot be allowed by Monsanto, your rule would result Monsanto having to prohibit seed sales to the grain elevators in the first place”
What passes for logic in your tortured mind Ned?
I see several immendiate options all of which are far more likely than your draconian NO SALES doomsday view.
1) Monsanto requires are reselling deals to incorporate the restrictive terms (including maintenance of separation in order to effect enforcement and not have the terms deemed illusory).
2) Monsanto designs a gene that lasts only one generation.
3) Monsanto charges more for the genetic item up front.
Now in full view of how helpful I have been, your turn:
Why does Monsanto readily admit that there is no control or explicit conditions on the resale of a harvest generating from the first generation seeds it sells?
Keep in mind that the Monsanto people have some pretty astute lawyers. Why do you think that they did not push for control on the progeny seed?
And why the H_xll do you think that naked sales somehow create a sleeping right in generations of product down the line? Where in law are you getting this?
You can ASSume anything you want (and you do).
Why does it matter to anyone? Your assumptions are most nearly always wrong and no one gives a flying leap what you think.
Sorry to be harsh. I am only being honest.
But please, try again.
Does the use of the widget necessitate that it creates more of itself during normal use in order to fulfill the intent of the patented item?
Hint: if the answer is yes, then your widget is also completely exhausted at sale.
Try again.
Occam only assumes that you would recognize what patent exhaustion means.
Don’t blame him, for he is but a simple man.
Try reading his post again – there is beauty in its simplicity.
Try again.
I am quite willing to stop if you would give us an apt term.
However, purification of a something from an unpurified state seem quite apt in context.
True, but you do have to exert physical control.
Try again, it is interesting that you assume that just because you say something that it is established fact. That comes part and parcel with your attitude that everything you say is the law and that you are always right and everyone else is always wrong.
Try, may I politely suggest that you consult a shrink. You are clearly in need of meds.
“If a farmer “purifies” the seed ”
You said you would stop.
ARRGGHHH.
STOP.
Those are terms of art and your use of those terms here is OFFENSIVE.
The point is that you don’t even have to yell “This is my whale.”
Read the Post case again.
Try again.
You got pounded to smithereens on the Chakrabarty/Nature thread.
Do you really want more of that?
Try again (but at least go back to that thread and do it).
Assume that I patent the improved tuna with a special gene. I then throw my patented tuna into the ocean and wait a few years. During this time, the patented tuna’s patented gene are assumed among the entire population of tuna.
Now I sue. Everyone fishing tuna in the world is now an infringer.
Other than equitable defenses, is there anything at all wrong with this?
Imagine some wiseacre even suggesting that one cannot patent nature?
There seems a fundamental conflict between all natural phenomena cases prior to and subsequent to Chakrabarty, and Chakrabarty.
Occam, but you assume that one can keep planting different seed, not the seed originally purchased.
Why?
ION, "Did the farmer buy the seed without restriction? It's a simple Yes and No question. Do you understand what "without restriction" means?"
ION, what does "without restriction" mean?
When one buys a patented widget, does one receive the right to make further widgets from this widget?
"I though Wild things were the property of whoever possesed them." But only for so long as one continues to exercise control. One can, after all, restore the wild thing to his natural habitat whereby one's ownership rights are abandoned.
Possession, I assume you took my post out of context for a reason?
Control + notice of a claim. Both are required, from my understanding. Simple notice without control is normally not sufficient.
Take the case of two whalers pursuing the same whale. Simply yelling, "That is my whale." is not sufficient. One must also put at least one harpoon into the whale.
IANAE:But in the case of a patented seed, or organism, who has the right to make, use and sell? The person who took the things from the wild, assumed control, etc., or the patent holder?The patent holder does, if anybody does.I don't know if you were aware of this, but patent rights are always asserted in things that the patentee does not own. That's the whole point. If it were a defense to patent infringement that the patentee did not own the infringing article, patents would be worthless. IANAE, I think we agree on this much: If a farmer "purifies" the seed stock so that it consists is substantially of only the patented seed, and then plants it or sells it, that farmer is an infringer.
I am not so sure of your position wrt to commodity seed, which is an uncertain mixture of patented and unpatented seed.
Bad See, Man, Anon, you might want to consider Aro Mfg. on the issue of exhaustion of the make right.
Man, since you replied to my post to Bad Seed asking for him to confirm his position, a post to which he did not reply, my I assume that you speak for Bad Seed?
anon, you are not making any sense.
Abra, your position is that if Monsanto permits the sale of the seed crop to a grain elevator, then Monsanto’s rights in that seed and all future crops are exhausted. Since that cannot be allowed by Monsanto, your rule would result Monsanto having to prohibit seed sales to the grain elevators in the first place.
“ I do not agree that the buyer of that seed has been granted a license to continue to plant patented seed in perpetuity.”
Great, because no such license grant is needed for a fully exhausted item.
(That’s why patent exhaustion here is the simple, correct, and simply correct answer).
“Bad Seed, what happens after the first crop is produced from the commodity seed is the real problem.”
Why is this a problem? The original “make” is gone (fully bought and paid for). The second “make” is OK per your logic (again fully bought and paid for). You want a third generation magic rabbit to jump out of your little black hat?
Did the farmer buy the seed without restriction?
It’s a simple Yes and No question.
Do you understand what “without restriction” means?
Take your time on this one.
“When we apply those phenomena to do things and make things”
I can think of no better example (and nothing more exciting than watching grass grow) than to plant something and say unto nature: apply it.