By Dennis Crouch
Bowman v. Monsanto (SCOTUS 2012) Download 11-796 ts
The farmer Vernon Bowman has filed his opening merits brief explaining his exhaustion defense against Monsanto's patent infringement charges. The case involves Monsanto's patented soybeans that have been genetically modified to be resistant to the broadleaf herbicide glyphosate, i.e., RoundUp Ready. U.S. Patent Nos. 5,352,605 and RE 39,247.
According to the statement of facts, Bowman purchased genetically modified soybeans on the commodity markets from a third party vender. It is assumed for the case that those seeds were grown and sold by farmers pursuant to a contract with Monsanto. As such, under traditional patent exhaustion principles, Monsanto's patents conferred no more control over the use, destruction, or distribution of those soybeans. This would have allowed Bowman to use the soybeans as feed or for biodiesel. However, Bowman chose to use the soybeans as seeds to grow a second generation of soybeans. Because soybeans self-fertilize, beans from the second and subsequent generations are genetically identical to the first generation and thus fit within the scope of Monsanto's patents. Although perhaps irrelevant to this case, Bowman admittedly purchased the commodity seeds with the hope that they were glyphosate resistant and then relied upon glyphosate resistance in the growing process. At the same time, he took pains to ensure that he was not violating any contract with Monsanto or pushing the grain dealer to violate such a contract.
Monsanto sued Bowman for patent infringement and won.
Exhaustion: Both the district court and the Court of Appeals for the Federal Circuit held that the exhaustion doctrine does not apply to new copies of a patented product created by the accused infringer. Monsanto sees its seed patents as akin to a book covered by copyright. When the publisher sells copies of the book, the copyright in those copies is exhausted — allowing the purchaser to resell or distribute the copies without reprisal. However, there is a major limitation to the exhaustion doctrine — copyright still protects against using the legitimate copy to make further unauthorized copies. For Monsanto, the fact that the patent is exhausted vis-à-vis a first generation of seeds says nothing about whether the patent is exhausted for the second or subsequent generation. Unlike the copyright laws, the patent law of exhaustion has not been codified, but the two doctrines are largely in step. The Supreme Court is currently considering a copyright exhaustion case, Kirtsaeng v. John Wiley & Sons, Inc. However, the outcome of that case is unlikely to impact Bowman's.
Monsanto also relies upon a property-law defense that limitations-on-use placed on the sale of patented goods operate as conditions that also bind subsequent purchasers. Here the original farmers were bound by contract not to replant the soybeans. Following the rule of derivative title, Monsanto argued (and the lower courts agreed) that "farmers could not convey to the grain dealers what they did not possess themselves." And further, that the grain dealers could only transfer to Bowman as much right as they possessed — that right being ownership of the soybeans without the right to use them as seed.
Pathway to Victory: Bowman's pathway to a Supreme Court victory seems to rest on two necessary holdings: (1) that the patent rights were fully exhausted in the seeds Bowman purchased and (2) that the exhaustion applies to subsequent generations of seeds. In my view, the first principle is will be easier to accomplish. The second is more difficult.
In Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008), the Supreme Court confirmed that "[t]he longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item." The correct view is here is that a condition on use does not bind subsequent purchasers of personalty unless those buyers agree by contract to be so bound. This is the ordinary rule that courts follow involving personal property and I see no reason to change that rule based upon the fact that the personal property happens to be covered by a patent.
Subsequent Copies: The fact that a patented product is the subject of a legitimate sale that exhausts the patent rights does not give the purchaser the right to use that original as the source for generating subsequent copies. Rather, the creation of those additional copies will be deemed counterfeit and infringing. Bowman does not challenge these basic principles. Rather, Bowman argues that soybeans are different because they are self-replicating seeds. Bowman writes:
If patent rights in seeds sold in an authorized sale are exhausted, patent rights in seeds grown by lawful planting must be exhausted as well. Due to the self-replicating nature of the invention, subsequent generations of seeds are embodied in previous generations . . . because seeds will self-replicate by normal use.
The farmers that I know largely side with Bowman on the issues, but they would quarrel with the idea of self-replication. In fact, farmers do an incredible about of work to grow a commercially viable crop. At a minimum for a good crop, the seeds need to be planted in sufficiently fertilized soil, watered (hopefully by rain), weeded (perhaps with glyphosate), and harvested. The timing must be right to ensure sufficient light and heat, and the fields must be protected from invading wildlife. In this sense, Bowman's statement that "Roundup Ready® seeds have been engineered to include everything one needs to practice the invention" is disingenuous. In any event, it takes much more outside input to grow a second generation of soybeans than it does to distribute electronic copies of my copyrighted writings or deliver electronic copies of non-patent prior art to the USPTO. In fact, we teach in law school that the ease of replication is an important factor in understanding the role of intellectual property rights. In an e-mail, David Snively, executive vice president and general counsel for Monsanto agrees with this point, writing that the "patent system protects – and should protect – the rights to easily replicated technologies like herbicide-tolerant seeds, just as it does for those who invent computers or life-saving medicines."
Perhaps the self-replication difference is not about energy input, but more about the nature of the product (a living organism in the form of a seed) and the fact that living organisms reproduce as part of their natural life cycle. Monsanto added an important element to its soybeans (glyphosate resistance), but Monsanto started with an incredible life form with the ability to reproduce in our natural world. Monsanto did not change or enhance any of those reproductive abilities and its attempt to control reproduction is could be seen as akin to the improper tying arguments. The fact that Monsanto made a big claim (the seed itself) doesn't change the fact that its contribution is far less than 1% of the genetic material important for a soybean's life cycle.
Finally, the hook on the argument may be that self-replication is the "normal use" of a product. This market expectation is important and could win the day. In the brief, Bowman takes pains to establish that replanting is an important normal use of commodity seeds. It is unclear to me whether the court will buy this factual argument and would be an important gap that could be filled by an amicus filing.
Growing not Making: Bowman also suggests an interesting additional argument – that growing the seeds does not constitute "making" seeds under 35 U.S.C. § 271(a). Bowman writes:
The seeds at issue here will self-replicate or "sprout" unless stored in a controlled manner to prevent this natural occurrence. Humans can (and most often do) assist in the process of self-replication. For instance, Bowman planted Roundup Ready® seeds and treated them with glyphosate. This activity led in part to the creation of new soybeans having the patented Roundup Ready® trait. But it was the planted soybean, not Bowman, that "physically connected" all elements of the claimed invention into an "operable whole."
Referencing and quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972). While important, this argument seemingly would not offer a complete win for Bowman because he may also be liable for using or selling the second generation.
One interesting rhetorical element of Bowman's brief is the way that it claims the middle ground by arguing that the court "should not create an exception to the traditional exhaustion doctrine for self-replicating technologies." (Bold in original). The starting point depends upon your perspective and I suspect that Monsanto will have a similar statement arguing that Bowman is asking for the exception.
Monsanto's brief of the merits is due January 16, 2013. Oral arguments and a decision will follow.
Guynnster, you are misapplying your efforts. You seek pleasure in proving someone wrong when you should be putting more effort into understanding the actual issues at hand.
As to the fallacy of “hides behind the skirt of anonymity” – LOL – focusing on the who instead of the what is a clear indication of someone realizing that they are not “winning” the battle of the what.
Reconstruction simply is a non-sequitur to the issue at hand. Thus it matters not the axiomatic nature of “reconstruction is infringement,” and you have added to the bad lawyering by resting your case on your (inapt and unsupported) conclusion, instead of looking at the particular case itself.
And I note that you still have not addressed the second question put to the Court.
If reconstruction is infringement it is axiomatic that new manufacture is infringement. Since anon hides behind the skirt of anonymity we will never know who we had the pleasure of proving wrong when the actual decision comes out.
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Reconstruction is a non-sequitur to the current issue.
Growing seeds is NOT even worse, and quite the contrary, what grows is contained in the item already sold. Thus no exception needed – and I am not depending on one. (You still haven’t addressed the second question to the Supreme Court).
There is indeed “bad lawyering” – but it is coming from Guynnster.
Must be bad lawyering because currently there is no exception for people manufacturing infringing goods just because they start with a few parts from a broken gadget. Reconstruction is infringing activity. Growing infringing seeds without authorization is even worse. You need to find a big exception for that one and so far no case provides one. But you can dogmatically think as you like.
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“ But you are relying on an exception”
Quite the contrary – I am relying on the doctrine of exhaustion as it stands.
Did you not see the second question put to the Supreme Court? It is your side of the discussion seeking to create and rely on an exception.
You are welcome to your opinion. But you are relying on an exception that making infringing seeds is somehow excused just because someone else purchased single use seeds upstream from the infringing activity in question. According to Mallincrodt single use restrictions are valid and consistent with patent exhaustion. You had better read this case a little more carefully and then consider the use of the term "implied license" in Univis before declaring yourself to be the only who truly understands the issues.
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Guynnster,
You are completely ignoring the fact that use = make and is intimately tied to the very invention and the reason these seeds are sold in the first place.
Until you can recognize these things and understand how they fit into the fundamental concept of the patent exhaustion doctrine, you will – of necessity – keep waiting. For others, the ability to reasons through these things act as a precursor to the Supreme’s decision (btw, have you listened to the oral arguments on the other exhaustion case before the Supremes yet?)
You bet I noticed I used the term license because there is a whole line of patent exhaustion case that talk about patent exhaustion as creating an implied license, such as Univis. And single seed planting restrictions are eerily similar to single use restrictions in Malloncrodt, which were upheld as valid. And I have no idea why you think there needs to be an exception to the rule of patent exhaustion for self replicating organisms, which seeds aren't exactly. In fact seeds don't divide and make other seeds but they make plants. The farmer, along with soil, fertilizer, air and sun, and of course plants, is what makes new seeds. This action creates an infringing product. And unless the farmer has a license to replant them,he can't. By contract the patent may and did provide a license to use the seeds for most purposes, amount which planting them was expressly restricted. With no license the planting is an infringement IMHO. You are welcome to think otherwise and I'm sure we'll all be enlightened when the decision comes down.
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Everyone has made some really good arguments from both sides. But my main concern is: with the number of acres controlled by Monsanto’s technology is a very significant part of our food source for this country. It bothers me that we are dependent on wether or not they will allow us to use their technology. Can you imagine one day them deciding they don’t want to sell it to us or what would we do if they decided they want 300.00 for a bag of corn seed. Oh wait they already have……. Maybe we will quit supporting them with our money until they get to 500.00 per bag.
anon, but you "philosophy" flies in the face of law so well established as to not even be subject to question.
If one sells an animal or plant to another, the person owns its offspring. You are suggesting that this is not the law, or at least, should not be the law.
It’s only nexus is for being planted to make more seed. It’s the only reason why that patented invention is sold.
Don’t you ever ask yourself why they keep planting the stuff year after year, at such great personal expense? Maybe they’re trying to set the world’s record for the largest pile of soybeans.
“because the normal use of the seed can also be considered a making”
Because it bears repeating and emphasis: the normal use of the patented seed must consider the making.
The patented seed has no nexus with being used as feed for chickens or for making tofu. It’s only nexus is for being planted to make more seed. It’s the only reason why that patented invention is sold.
Four more additional days and nothing of substantive nature MM.
It clearly appears that you are running away from yet another dialogue, but this one is one that you said you would gladly join.
Curious isn’t it how you never seem to be able to provide answers or substantive points outside of a very narrow range of your own pet wacky theories?
It’s like you have a one track mind, and that track leads straight to oblivion.
Guy, the better question is this:
If you own the seed and have no contract restrictions, can you plant it.
Guynnster,
You do not seem to be grasping the notion of exhaustion. Once a patent is exhausted, there are no more patent rights to give implied licenses to. (Your statement “Purchasers don’t ever have patent rights” is a non-sequitur. I suggest you look into the history of secondary markets.
The notion of self-replicating is indeed not in Univis Lens, but exhaustion is. The second question put before the Supreme Court is whether a NEW exception should be put in place for self-replicating inventions. Currently, there is no such exception.
I recommend that you listen to the oral arguments before the Supreme Court in the other exhaustion case (Kirtsaeng).
link to patentlyo.com
anon, to your other point, patent holders have patent rights, and buyers have implied licenses under the patent as a result of a legitimate purchase from an authorized seller. Purchasers don't ever have patent rights. Without the implied license they would be infringers.
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Hi Anon,
I read a summary of Univis Lens and don't agree that it's holding is as sweeping and applicable to self replicating seeds as you have argued. At it's core is the issue of price fixing, very disfavored at the time of the opinion (1942), and the holding clearly relates to the sale of one blank to make one lens, and then the right to incorporate the one lens into any finished article. It has nothing to do with self replicating organisms that make exact copies of themselves. Thus the Monsanto case will be mostly a case of first impression. Until the decision I can express my beliefs as to what the holding ought to be because I don't agree that the holding and facts of Univis are close and exactly controlling as you seem to think. But it will be interesting to see the outcome.
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Guynnster,
Notice how you use the phrase “licence” as opposed to patent right (you should recognize that you are mixing in contract issues with patent exhaustion doctrine, and that should be your first clue that something in your thought pattern is amiss). Whether “combined effort” or not, the invention is contained in the first sale completely and that first sale exhausts the patent right. Now, contractually (i.e. your use of the term license), brings a different wrinkle than the legal discussion of patent right exhaustion. Think of it this way: if there was no concern with patent exhaustion, then no contractual limitation would be needed!
You example of the DVD burner is inapposite. The multi-replication capability of seed is within its natural function and use (and the very use exhausted in the first sale – as I have said, that first sale is directly tied to what the invention is about – planting and thus making – no one buys the originating seed to feed chickens or make tofu), and is quite apart from the claimed invention – and cannot be contained by the claimed invention.
Your example falls apart when you consider that you are comparing a DVD (not a DVD burner) with a seed. You have added an extraneous factor. Seeds do in fact quite naturally make more seeds. DVDs on the other hand do NOT in fact naturally make more DVDs. The difference defeats your own argument.
Read Univis Lens. Listen to the oral arguments before the Supreme Court. Broaden your thinking beyond what you currently think “ought to be.”
I get what you think the result “ought” to be, but your ought is mired in an incomplete understanding of patent exhaustion doctrine.
“That part you put in bold – I suppose you have some authority for it being good law?”
Did you read my comment? Did you read Univis Lens? Please stop confusing “make as many as you want” with the natural use of a seed – that’s preventing you from understanding the situation. With seeds, the progeny is within the original item. That’s actually a “bug” with self-replicating technologies, not a “feature.”
Anon,
I have different opinions regarding what the court might do versus what I think the doctrine ought to be. My understanding is I'm responding to people's opinions regarding what they think the law ought to be. Therefore that is what I am providing. Seeds are not self replicating in the sense that cells self replicate. A seed does not divide into another seed spontaneously. Rather I sees only produces a plant, which must be nurtured by the farmer over a long period of time in hopes the plant will reach maturity and produce seeds. It is the combined action of the plant and the farmer that make next generation genetically modified seeds. By the time the new seeds are made the original sprouted seed is long gone. It fulfilled it's purpose and with its departure so went the licensed rights granted to the farmer to plant it. The combined efforts of the plant and farmer nurturing are like a little manufacturing plant that produces infringing product. The farmer then has the right to do anything it wants with the seeds-all except plant them. That to me is the correct result. Otherwise it's just like buying one DVD, making endless copies and then acting as if the one license for one DVD now applies to all DVDs. Licenses are not self replicating. If the one seed were destroyed while making one new seed you might have a point, much like making a legitimate backup copy of the DVD before it gets scratched up and destroyed. But one seed produces not one seed, but hundreds or thousands, albeit indirectly, much like a DVD burner can produce many copies of the DVD.
So I believe one license to plant one seed mean just that. One license doesn't replicate itself into many licenses any more than one DVD purchase. Just my humble opinion as to what I thnk ought to be the result.
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the first sale exhausting the patent rights to the seed and its progeny
That part you put in bold – I suppose you have some authority for it being good law? Because I’m pretty sure I’ve never seen the caselaw on being allowed to make as many as you like if you’ve bought one.
I’m sure it would have come up in Global-Tech, but nobody even raised it. Hey, the guy bought one from the patentee, so why couldn’t he sell its progeny?
I am not satisfied by “proclaiming victory,”, but rather, the victory will be had if the exhaustion doctrine – as understood today – is simply applied.
Take a look at the Univis Lens case. Exhaustion from the sale of an article is induced even if the actual article sold is “not complete” but contains enough of the patented item.
So too with the seed (as pertains to any progeny).
The fact that the seed self-replicates has no impact on the first sale exhausting the patent rights to the seed and its progeny (so, in essence you are incorrect in your assumption that second generation seeds are not affected by the first sale – once exhausted, the item in ALL of its natural uses is fair game). To hold otherwise is to change the current law and understanding of the exhaustion doctrine (hence the second question to the SC sounds in that very aspect). The problem you have with self-replicating items is that to create such a loophole promises to swallow the exhaustion doctrine completely. To reach your view, you have to assume the answer you want to have, which in fact is different than what the current law is. Take a listen again to the oral arguments in front of the SC. The position you are espousing was absolutely trounced there.
Hi anon. I know it's always satisfying to proclaim victory, but the flaw in your argument is that the seed one buys from Monsanto is not the same seed that is made from the plant derived from the first seed. The first sale doctrine allows the buyer to plant, eat, or discard the seed. But it confers no rights with regard to what the farmer may do with second generation seed, which was not sold by Monsanto. Because the first sale does not apply to seeds not sold by Monsanto, planting second generation seed is an infringement, whether by the unauthorized first buyer or an unauthorized third party. Because the buyer can't plant second gen seed, a third party cannot magically have rights that the first buyer lacks.
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“I Agee that if Monsanto sells you the seed you can plant it.”
This admission allows the whole use=plant=make counter position to destroy any post sale controls of the patented item (its the basic premise behind the exhaustion doctrine).
Accept the second sale is without limitation of any kind (and Monsanto not only agreed to such, but testified to this as well).
Hi Anon. I actually didn't forget what the sale was for. But the sale is contingent on only planting once and then using the crop for purposes that do not involve planting, which would be a new infringement because the user made the second gen seed. It was not sold by Monsanto. Therefore it is clearly an infringement to use it beyond the license that is applicable as a result of the first sale.
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I Agee that if Monsanto sells you the seed you can plant it. But I thought the issue here concerns a party to whom Monsanto did not sell seed. You cannot divorce the actual sale by the patent holder from the first sale doctrine, especially when the sale was contingent to the purchaser. Monsanto sold the seed older condition that it only be planted once. If the first sale doctrine does not shield the buyer from infringement when replanting second generation seed I don't see ow it can shield a third party. As I learned in property law: non doc qui non habit (or something like that) meaning you can't give more than you have. A thief cannot give good title to stolen property to a third party.
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Actually, I am “running away” from your frivolous off-track frolic, and it is you that is running away from the substantive, actually in context discussion.
As to trying to make myself clear, I have provided additional source materials on more than one occasion so clearly the lack of effort is not on my behalf. Quite the reverse, actually since it is you that has not even bothered to try. You seem too pre-occupied with your frolics to notice either the content or any efforts to make you aware of the content – your immediate comment that I refuse to make myself clear is actually a condemnation of your gamesmanship, as clearly I have repeatedly attempted to educate you.
It kind of looks like you’re running away from a substantive discussion, though. That’s fine. After all, I told you that I didn’t expect to ever understand you. Your refusal to even try to make yourself clear is of course the reason why.
Thank you for noticing. Now if we could do something about your tendency to frolic.
Nice substance there, anon.
No I haven’t, and contract law is precisely where you went on your frolic.
This one does love the mud.
Yes you have.
But OK, let’s talk about contract law again. What is it that I’m supposed to understand from the links you provided? I don’t see anything in there telling me that the Patently-O Terms of Use prohibit Ned from telling lies in the comment section. Is that what we are talking about?
I haven’t changed anything and I have not mischaracterized your comments.
Try again.
So you are no longer denying that you’ve been mischaracterizing my comments? I just want to make sure I know where we are before we change topics again.
I don’t understand why you place such importance on “your expectations.”
You care to understand, or you do not. Your actions in not understanding speak more than anything else. You have ignored the items I placed at your disposal for you to understand the proper context of the discussion and you continue (here, above at 1:11 PM Dec 06, you careen out of context and then accuse me of dodging your out of context path (the 2:40, 2:57 and on comments).
You keep shooting arrows that miss the target and then wonder why you are missing the target.
How is your answer of “I don’t, anon, I don’t.” – with no more – to my question of “how do you ever expect to understand anything I say?” a mischaracterization that you don’t care to understand?
This can’t possibly be what you meant to say, can it? Nobody said that my answer is a mischaracterization of anything.
Perhaps you meant to say “How is it a mischaracterization to say that your answer of ‘I don’t’ to my question of ‘how do you ever expect to understand’ indicates that you don’t care to understand”?
If that was what you meant then my response is that not expecting to ever understand you is quite different than not caring to. For the record, however, I don’t really have strong feelings one way or the other. But your latest comment doesn’t do much to change my expectations.
How is your answer of “I don’t, anon, I don’t.” – with no more – to my question of “how do you ever expect to understand anything I say?” a mischaracterization that you don’t care to understand?
If you wanted to say more about understanding, would you not have done so?
If you wanted to actually understand, you would have already looked into the links provided and understood the context.
Clearly, you have done neither. Instead of understanding me, you continue to shoot ineffectual arrows.
It may be a supposition of mine regarding your (lack of) action, but “mischacterization” is not the right word.
Fascinating it is that you attempt to label my behavior as bad behavior, while your behavior is seemingly accepted as perfectly normal – and yet I have even provided assistance to you in order to properly understand the context of the discussion. Assistance you have chosen to ignore.
Oh that’s right – you don’t care to understand.
That’s not what I said. You can’t go three sentences without mischaracterizing others’ comments, can you? And yet you’re the one lecturing others on bad behavior. Fascinating.
LOL, flaccid, tiny,… MM, you are projecting again.
“no credit for this, as you’re weaseling it up a bit.”
There is no “weaseling it up” – the discussion is as stated – I am providing the context of that discussion, not “weaseling.” If anything, your desire to NOT see this in context is where the “weaseling” is going on.
I note too, that you still haven’t shown that you understand what a web site’s Terms of Use signify (even after I have provided helpful links).
Oh that’s right – you don’t care to understand.
I guess if you only want to troll, actually understanding would get in the way, wouldn’t it?
LOL – Want do you hope to accomplish?
(it’s a different questions).
I said “I don’t,” twice. How much clearer can I be?
LOL – I thought that would spin you up. Yes, I was pretty gentle.
link to patentlyo.com
Can you supply the link to the time when I denied that Professor Crouch said “no lying”?
I didn’t think so.
anon, the Canadian opinion is interesting in that it totally rejected the idea that the farmer “made” anything by planting the seed. That was a act of nature, entirely.
Infringement was found, however. The farmer was found to have “used” the invention by retaining seed, and planting it.
Anon, I urge you to read Bowman’s brief. Once a sale is made, it passes beyond the control of the patentee under the patent laws. The patentee cannot impose any “restriction” on use that is enforceable by infringement action. The patentee’s sole remedy is by breach of contract.
Moocow, buys a bag of chicken feed.
Buys a bag.
Buys.
Exhaustion only requires a sale. Thereafter, the patentee cannot impose any restriction requirement on the buyer that might be enforceable under the patent laws.
We have a doctrine that patents cannot cover products of nature. Why is a sexually reproduced plant or a seed not a product of nature?
I know this issue has already been decided by the Supreme Court. JEM Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 US 124 – Supreme Court 2001. But something really is amiss here, because we know that once released into the wild, sexually reproduced plants and animals return to nature.
Miles, thanks for the link.
All, here, the farmer originally bought seed from Monsanto, retained seed, planted it and discovered that 60% was Roundup Ready resistant. He then continued to replant retained seed thereafter with a 95% purity rate.
The court found him liable for “using” the invention.
The dissent said the invention itself, to the extent it covered a plant, was not patentable subject matter. The dissent would have limited the scope of the claims to the use of the patented plant DNA to engineer RR resistant plant varieties.
If you don’t expect to understand, and yet want to debate the point, what pray tell, do you hope to accomplish?
You missed a few points Leopold.
As to “but I don’t presume to speak for him” which implicates that I do, may I remind you that I was personally asked how to make the blog better and that my suggestions do not “presume” anything on Prof. Crouch’s part. The fact that he has a Terms of Use still clearly escapes significance for you.
I cannot force you to take the effort to understand what that significance is, but if you insist on debating a point with me that you refuse to understand at the onset, how do you ever expect to understand anything I say?
None of the items in my post above are imaginary.
On the other hand, “running away” by you on substantive points is very much real.
“Meanwhile, we’re still waiting”
to quote MM, “Ohnoes!!!”
Sorry MM, the ball is in your court on that thread since you said, now four days ago, that you would gladly post something of substantive value during my afternoon naps.
Still haven’t seen anything of substantive value from you.
political, racial, and se_ual allusions
Oh noes!!! What is this country coming to??!?!
Meanwhile, we’re still waiting for anon to explain the “pro-choice” relevance of granting claims to novel catheters.
Watch out, folks: anon is wielding the bold tags!
Things are getting very serious indeed.
I guess that’s the other flaccid “arrow” in anon’s tiny “quiver”: when all else fails, simply refer over and over and over again to some imaginary event wherein anon issued a “beatdown” and his adversaries “ran away”, humiliated. Because everyone knows that if you repeat something often enough, why, it becomes the truth!
And that’s why anon “owns us” all, at least in anon’s awesome brain.
Inventor, Monsanto “could” require that all crop seed be returned to it, or could allow it to be “replanted” for a fee. If a farmer breached, Monsanto would have a remedy, but under the law of contracts.
Anon, on dicta, yes. But the holding of the SC over 150 years on this topic is more than clear. Once a sale is made, the article sold passes beyond the patent laws, or for that matter, the copyright laws. The two legal regimes are read together on this point.
Thus, violation of a “notice” restricting use of a sold item does not make the resulting sale or use infringing. If there is a remedy, it is under the law of contracts. As a corollary, the patent laws do not justify post-sale activity that might be a violation of the antitrust laws.
When Monsanto (or it authorized vendor) sells seed, it can no longer resort to the patent laws according to the Supreme Court. This is where the Supreme Court and the Federal Circuit part company. The lower court seems to think that post sale use restrictions can be enforced under the patent laws.
I recognize that you are still a little sore from the beatdown I gave you on that topic…
Exactly which topic was that, anon? I bet you can’t or won’t even clearly articulate what that topic was. Can you repeat one affirmative statement made by you in that discussion that you are willing to stand behind? Just one?
I didn’t think so.
Free the dead prisoners!
LOL – pure balderdash MM.
Nice try though.
How is that Chakrabarty reading coming along?
I am not the one trolling – or piping in to ask other people to stop discussing a matter.
As to “still with the utter refusal to answer even the simplest of questions<" - your question was off target and you know it. I recognize that you are still a little sore from the beatdown I gave you on that topic, but try these sites: link to en.wikipedia.org
link to en.wikipedia.org
Still with the utter refusal to answer even the simplest of questions, anon?
That’s anon’s game: say something incoherent with an insult riding on top of it. When you press him to clarify, you get accused of “avoiding the issue.” When you take a reasonable stab at understanding what he is talking about, or when you just take him literally and point out the logical problems, you are “twisting his words to suit your agenda.”
I don’t think there’s anything more complicated than that. It’s sad, in a way, because every so often anon makes a comment that suggests he does know something about patent law. It’s just that instead of carefully articulating his position, he relies on capitalization and bolding. And then, no matter how inocuous or academic the issue being addressed, he poisons it with insulting references to everyone else’s “agenda.”
Still with the utter refusal to answer even the simplest of questions, anon?
Obviously, you are still dodging any attempt to pin you down on anything, by replying with hopelessly vague expressions like “meaning and context of Terms of Use.”
Keep trolling, my friend.
Still with the incorrect contract angle, Leopold?
Obviously, you have not looked into the meaning and context of Terms of Use (and also ignoring the context of the express request to make the blog a better site), and you are still clinging to some errant view.
Aim higher my friend.
He did indeed say that. But I’m sure that you will not disagree that parol evidence is inadmissible to contradict or augment a contract that appears to be whole, right?
So that he stops his incorrect postings, of course.
LOL – i just had to throw that wishful thinking out there.
Actually, more in line with how MM has had his postings “altered” with the no-flat-out-lies policy of the new Patently-O, if IANAE recognizes the actual points here, and persists in misrepresenting them, he too would violate the terms of use of the blog.
Have you checked into the context of Terms of Use that were so confusing to you yet? Even lacking that, I am sure that you will not disagree that Prof. Crouch explicitly said that lying is not allowed in comments on this blog, right?
And why is it important that IANAE recognize the neglected components?
Sure – as soon as the neglected components are recognized by IANAE, we can stop.
I think you two have articulated the two perspectives on this case quite well. Now, why don’t we wait and see what SCOTUS has to say, instead of just repeating the same things over and over again.
Exhaustion does “give” the right to use (more correctly, wipes out the right of the patent holder to exclude use) – even in that ancient art called agriculture.
Yet again you neglect to look at the nexus of the patented invention and the point, the very reason of the sale (hint, originating seed was not sold to feed chickens or make tofu).
unless of course, that patented seed has been exhausted by prior sale…
Exhaustion doesn’t give the right to copy. Never has.
“until you start doing it with someone else’s patented seed.”
unless of course, that patented seed has been exhausted by prior sale…
Your attempted interjection of the copyright hypothetical is not on point (for a number of reasons, including the fact that two people painting the same outdoor scene is not ‘copying,’ and your strawman is showing in your forcing a pure-copy scenario to be “displayed outdoors” – which has nothing to do with anything). As to your attempted new defining of “using”, it is not clear what parallels to the present case you are trying to make.
which may be used for any number of purposes
Ah, good, we’re making progress here. Too bad the word “primarily” was lost on you, but that’s to be expected. Not like you were going to agree with me just because we think the same thing.
INCLUDING late season planting (which has been done for generations)
Which is perfectly acceptable until you start doing it with someone else’s patented seed.
You might as well say that because someone is a landscape painter they can go around and paint an exact copy of someone’s copyright artwork that is being displayed outdoors, simply because landscape painting has been done for generations. Yes, it’s a perfectly acceptable activity, until someone else has a right to exclude you from copying. And no, “using” the work by looking at it and painting another doesn’t make the whole thing okay.
“We’re talking here about commodity seed which is sold primarily for use as animal feed and the like”
We are talking about commodity seed (the third sale in the extant fact pattern with no K terms attached) which may be used for any number of purposes INCLUDING late season planting (which has been done for generations)…
So clearly, you don’t know jack about the facts at play here.
Please remove the Calvinball from your face before your next post.
to use the seed that was sold, you have to put it into the ground and thus “make” is simply not divorcable from the purpose of the sale.
We’re talking here about commodity seed which is sold primarily for use as animal feed and the like. So clearly there’s no possible way to use the stuff without burying it underground in neat little rows, watering it, fertilizing it, weeding it, and hoping it “self”-replicates.
Read slower so that YOU understand.
Read again the question you quoted above and then the question you think I dodged. Think about it for awhile. Let me know when comprehension dawns on you.
No, because to use the seed that was sold, you have to put it into the ground and thus “make” is simply not divorcable from the purpose of the sale. What you do after that “make” is what you are trying to emphasize, and like IANAE’ a ‘agriculture’, you both are missing that critical first use.
Anon,
You misread. Of course Monsanto doesn’t sell its seed, and farmers don’t buy it, as chicken feed.
So let me rephrase: “the very purpose of selling seed it is to enable farmers to grow food. The purpose of selling seed is not to grow more seed.”
Better?
Conversely, this sounds in the position that Monsanto HAS exhausted their ties with the sale. Is that the position you are taking in your question?
Very well, I’ll type slower so you can understand.
Trespass, on these facts, depends on the patentee owning the article.
Infringement, whether exhausted or not, depends on the patentee not owning the article.
I dodged no questions.
“what does Monsanto own that could make Monsanto liable in trespass?”
Moocow, then are you surrendering the “make” argument that the seed growing in the ditch “makes” more seed?
Steven,
there can only be patent infringement if somebody makes, uses, or sells the patented thing. Just because something fell off your neighbor’s truck and grows in the ditch on your property doesn’t mean you’ve infringed a patent.