Oral Arguments in Bowman v. Monsanto

By Dennis Crouch

Bowman v. Monsanto Company (SCOTUS 2013) Transcript

The Supreme Court heard oral arguments today in the patent exhaustion case involving Monsanto's glyphosate-resistant soybeans.  Acting in a pro bono basis, Mark Walters represented Mr. Bowman, the Indiana farmer accused of patent infringement.  Decidedly not pro bono, Seth Waxman represented Monsanto, and Melissa Arbus Sherry spoke on behalf of the US Government. 

My expectation here is that the court will side with Monsanto and find that a sale of patents seeds does not exhaust the patent rights as to progeny seeds that are grown. I will not be surprised if that result is 9-0. I suspect that there will also be a concurring opinion arguing that the Federal Circuit's conditional sale doctrine is bad law and that restrictions on the use of personal property do not normally bind subsequent purchasers who are not privy to that restriction agreement – regardless of whether the personal property is covered by a patent right.

= = = = =

There are two major questions at stake: (1) what is the scope of patent exhaustion for goods that are naturally self-reproducing; and (2) to what extent do use restrictions placed on a licensed grower (or manufacturer) persist as servitudes that create potential liability for downstream purchasers.

Everyone agrees that the first authorized and unrestricted sale of a patented article exhausts the patent rights in that particular article and allows the purchaser to use and sell the article without fear of patent liability.  Bowman argues that, for seeds, this right to use includes the right to sow the seeds and use the harvest.  Under Bowman's construct, once a seed is sold without restriction, the patent rights are exhausted to that seed and to its generations of progeny. Bowman's argument also relies upon the disputed assumption that the patent rights covering the initial seeds he purchased were actually exhausted. Monsanto has kept tight control over its product throughout the years and always requires farmers who want to plant its seeds to sign a technology licensing agreement. That agreement includes a promise not to save and replant seeds. Monsanto has argued that use restriction (or license limitation) is binding on subsequent purchasers – even those who purchase the seeds in a fungible commodity market without agreeing to any restriction. Thus, for Bowman to win, the court needs to find (1) that the rights in the original seeds were exhausted by the time Bowman purchased them from the commodity market and (2) that the exhaustion applies to all future progeny of the seeds. So far, the courts have sided with Monsanto.

Out of the gate, a plurality of justices appeared concerned about the policy implications of a decision in favor of Bowman.

Chief Justice Roberts: Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?

There are several ways to answer this question: (1) an innovator could use contract law to ensure a better market structure; (2) patent rights are rarely sufficient alone to ensure profit; and (3) that soybeans are not really fungible in the way that you might think. The Court already knew the first two answers wanted to explore the third.

Mr. Walters: [S}eed that's available at a grain elevator is not a very good source of seed and farmers are not going to be able to eliminate the need to go to Monsanto or the other seed companies every year by going to the grain elevator. . . . Taking our example here where — where Petitioner bought commodity seeds, it's an undifferentiated mixture, it can't be overemphasized how different every single seed is, you don't know a Monsanto from a Pioneer from an Asgrow. You don't know the maturity rate. If I am a farmer, I need a particular maturity bean for my field because I don't want it to mature before it gets high enough for the combine to come around and cut it.

So you want to be able to have — you have all these things dialed in, these different variabilities. So if you go to the grain elevator and you don't know what exactly it is that you want and you just get a mixture, that's not going to be real -competitive at all to Monsanto's first generation seed. Now, the possibility of somebody selecting one and saying, ah, that's the exact one that I need for my field, I'm going to cultivate that and let it grow into enough seeds so I can plant my first crop, that would take a number of years to grow a 1,000-acre farm, and it's not — and by that time, farmers — the nature would have changed and evolved where you would want the latest disease resistance by that point….

Justice Scalia: Some of them would — would grow at different rates than others.

Mr. Walters: Absolutely. . . .

Justice Scalia: The original batch that he buys from Monsanto, in addition to being resistant to the chemical that kills the weeds, in addition to that, they all mature at the same rate.

Mr. Walters: Exactly. They're a uniform variety. They are exactly what a farmer needs …

Justice Scalia: So all the Monsanto seeds are not — are not fungible.

In addition to these elements, both Ms. Arbus Sherry and Mr. Waxman explained that the seed lines are additionally protected by PVPA certificates and that grain elevators are sales are prohibited by state and federal law from labeling its commodity goods as seed.

On the actual law of exhaustion Mr. Walters did not appear to fare so well.

Justice Sotomayor: I'm sorry. The Exhaustion Doctrine permits you to use the good that you buy. It never permits you to make another item from that item you bought. So that's what I think Justice Breyer is saying, which is you can use the seed, you can plant it, but what you can't do is use its progeny unless you are licensed to, because its progeny is a new item.

Mr. Walters: This is obviously a brand-new case where we're dealing with the — the doctrine of patent exhaustion in the context of self-replicating technologies.

It was around this point that Justice Breyer gave his best one-liner of the day, declaring that "three generations of seeds is enough." (see Buck v. Bell).

The government's Ms. Arbus Sherry began her discussion with a somewhat disingenuous parade of horribles that was quickly countered by Justice Scalia his is well known for his parades.

Ms. Arbus Sherry: If the concept is the sale of a parent plant exhausts the patentholder's rights not only with respect to that seed but with respect to all the progeny seed, we would have to go all the way back to the very first Roundup Ready plant that was created as part of the transformation event. Every single Roundup Ready seed in existence today is the progeny of that one parent plant and, as Your Honor pointed out, that would eviscerate patent protections. There would be no incentive to invest, not just in Roundup Ready soybeans or not even agricultural technology, but it's quite a bit broader than that.

In order to encourage investment, the Patent Act provides 20 years of exclusivity. This would be reducing the 20-year term to essentially one and only sale. It would be near impossible to recoup your investments with that first sale and so the more likely consequence is that research dollars would be put elsewhere.

Justice Scalia: That's a pretty horrible result, but let me give you another horrible result, and that is if — if we agree with you, farmers will not be able to do a second planting by simply getting the undifferentiated seeds from a grain elevator, because at least a few of those seeds will always be patented seeds, and no farmer could ever plant anything from a grain elevator, which means — I gather they use it for second plantings where the risks are so high that it doesn't pay to buy expensive seed. Now they can't do that any more because there's practically no grain elevator that doesn't have at least one patented seed in it.

Ms. Arbus Sherry: And the answer to that is this is actually not a traditional farming practice. Despite what Petitioner says, farmers do not generally go to grain elevators, buy commingled grain, plant it in the ground as seed.

Mr. Waxman's performance appears to be a tour-de-force, although he did not push for affirmance of the Federal Circuit's conditional sale doctrine. The one area where the court focused attention was on innocent infringement.

Justice Kagan: Mr. Waxman, there is a worrisome thing on the other side, though, too. And that is the Bureau position has the — has the capacity to make infringers out of everybody. And that is highlighted actually in this case by how successful this product is and how large a percentage of the market it has had.

So that — you know, seeds can be blown onto a farmer's farm by wind, and all of a sudden you have RoundUp seeds there and the farmer is infringing, or there's a 10-year-old who wants to do a science project of creating a soybean plant, and he goes to the supermarket and gets an edamame, and it turns out that it's Roundup seeds.

And, you know, these Roundup seeds are everywhere, it seems to me. There's, what, 90 percent of all the seeds that are around? So it seems as though — like pretty much everybody is an infringer at this point, aren't they?

Mr. Waxman: …Your point about the ubiquity of Roundup Ready's use is a fair one. I mean, this is probably the most rapidly adopted technological advance in history. The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States.

But size — that is, success — has never been thought and can't be thought to affect the contour of patent rights. You may very — with soybeans, the problem of blowing seed is not an issue for soybeans. Soybeans don't — I mean, it would take Hurricane Sandy to blow a soybean into some other farmer's field. And soybeans, in any event, are — you know, have perfect flowers; that is, they contain both the pollen and the stamen, so that they — which is the reason that they breed free and true, unlike, for example, corn.

The point that there may be many farmers with respect to other crops like alfalfa that may have some inadvertent Roundup Ready alfalfa in their fields may be true, although it's — it is not well documented. There would be inadvertent infringement if the farmer was cultivating a patented crop, but there would be no enforcement of that.

The farmer wouldn't know, Monsanto wouldn't know, and in any event, the damages would be zero because you would ask what the reasonable royalty would be, and if the farmer doesn't want Roundup Ready technology and isn't using Roundup Ready technology to save costs and increase productivity, the — the royalty value would be zero. …

Justice Breyer: And some of the self-replicating items, which are infringing items, end up inadvertently all over the place. Is there anything — is there precautions that you take? I mean, is there anything in patent law that helps?

Mr. Waxman: So infringement is — unlike contributory infringement or induced infringement, the act of infringement, that is a violation of Section 271 is a strict liability tort, but it requires affirmative volitional contact -conduct. That is, it's not that — a thing doesn't infringe; a person infringes. …

Justice Breyer: But you're just saying that would need a modification in patent law.

Mr. Waxman: Of course.

We can expect a decision by June.

378 thoughts on “Oral Arguments in Bowman v. Monsanto

  1. 299

    do I have the right to clone the dog and sell the clones?

    Nice strawman. Sort of like the screwdriver example – take a position that no one is arguing and knock it down.

  2. 298

    I think I understand the love of the Lone Ranger series for these two.

    Every episode features lots of dust-kicking.

  3. 297

    I have made the argument

    You have attempted to make the argument.

    You failed badly.

    One of those things where your inconsistency with following the Supreme Court is rather glaring.

  4. 296

    we can analyze that claim after you draft it

    Unless of course, it is 101 Integration Expert that asks you to analyze a claim according the the USPTO guidelines post-Prometheus that, (ahem) you Malcolm were the very first to link to.

    That analysis is simply too embarrassing for you to do, evidently.

  5. 295

    non Sequitur II: If I understand your position correctly, you would consider the follow sequence of steps to be patentable subject matter:

    1. Add x + y.
    2. Divide the result by 4.

    101 Integration Expert

    No. Disembodied math is a Court created exception.
    What you do not understand is the law or you would not have written such a response in the first place.

    A process for planting seeds.
    A process for programing computers.
    A process for conducting business.

    If new and useful, ALL are patent eligible subject matter and you have no law that says otherwise.

  6. 294

    I think I understand the basis of your analogy now. You seem to be working under the belief that all steps are created equal. To me, it is quite clear that the step of physically putting a bean in the ground is different in character from the step of performing a discrete cosine transform, for example.

    If I understand your position correctly, you would consider the follow sequence of steps to be patentable subject matter:

    1. Add x + y.
    2. Divide the result by 4.

  7. 292

    Non Sequitur II:”IIt seems that you are starting from the position that any sequence of steps is patentable subject matter, which seems to me like a really broad rule.”

    It’s not just a rule. It’s the law and yes it is very broad.

    Please see the following statute”

    35 U.S.C. 100 Definitions.

    When used in this title unless the context otherwise indicates –

    (b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

    35 U.S.C. § 101 35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    Now, what you must understand is that the Supreme Court has interpreted the statute to have only two very limited exceptions;

    Law of Nature/Natural Phenomena and Abstract Ideas.

    The purpose of the judicial exceptions is to prevent foreclosing the use of the exceptions for future innovation.

    The process of planting seeds reduced to a series of steps/acts is not one of the Court created judicial exceptions. Likewise a process of programming a computer, or a process of conducting business e.g licensing seeds to a farmer, is not a Court created judicial exception.

    Now here is were it gets tricky for novices and exploitable by the intellectually dishonest.

    You are allowed to foreclose others from the use of your process reduced to a series of steps or acts, as long as the steps do not keep others from using a judicial exception to create an altogether different process.

    And thats the law.

    Any questions?

    I am here to help.

  8. 291

    Ned Heller: “Anon, there is no other test anyone has come up with to date.”

    Ned this is not correct.

    There is the Diehr Concept & Application Test ( DCAT) used in Diamond v Diehr and later adapted in Mayo v Prometheus as Integration.

    Integration, while not a bright line test, is no less a Court sanctioned and PTO recognized analysis for determining patent eligible subject matter.

  9. 290


    Where on this planet does a seed make a plant? A seed becomes a plant, but does not make a plant.

    That would be a great counter-argument, Hans, if I had argued that a seed makes a plant. But I didn’t.

  10. 289

    Assuming that we are talking about the same passage of Prometheus , I interpreted it as punting the question of sufficiency of the MOT. SCOTUS pointed out that they have never said whether or the not the MOT was sufficient, but that it didn’t matter because the Prometheus claims failed.

  11. 288

    Ned,
    Your post at 7:42 is not responsive.

    Are you mutinying against what the Supreme Court has explicitly said?

    (It matters not that they have not replaced MoT – not in the least!)

  12. 285

    product must exist prior to the invention. The exception really is a form of prior art.

    Now Ned – see Chakrabarty – and you are being mutinous now.

    And by the way – the Supreme Court itslef has TOLD you wher they get their implicit authority (hint: it’s not 102 or 103).

    Whatever happened to your obey the Surpremes strictness that you would apply to Rader?

    Which side of your face is speaking now?

  13. 284

    in the exact form that is claimed

    “Exact” has never been required.

    The “orthodox” word you meant to use was “effectively.”

    Even Leopold knows that.

  14. 283

    if the real problem is with the product of nature exception is not prior art

    This has long been put forth and explained. The product of nature exception is a 101 exception. It has no element of “prior” to it. It simply is not a 102/103 exception. See Chakrabarty.

    you win. Draft the injunction, please.

    Ned, this (simple) question was put to Malcolm a LONG, LONG time ago. Not only has he NEVER answered it, he even attemtped to co-opt the question and use it as his argument.

    And yes – this is archived.

    And this is precisely the c_rrp we get fromlow quality blogging that allows people to post WHATEVER with no accountability to answer valid poitns raised, to kick up dust and run away from the issues, and then repeatedly return and post the same c_rrp.

    Some will simply [shrug] and stand by.

  15. 282

    Lester if you wish to learn at my knee then you may send me an email, and I will set you a time for an appointment. You must come ready to st fu and learn, and most decidedly not ready to try to argue with me about the 101 principles recently re-enunciated by the supremes that I first introduced onto these boards.

  16. 281

    “According to the court, all that is needed is that it preempt something”

    Something which has been judicially excepted ya ta rd. There are three excepted things, think you can name them baby lester jester?

  17. 278

    Uhoh – into the fetus land – we can’t have that discussion here, because, well, fetus is merely “property,” and does not “make” anything, does it?

    D_@mm intrusive government messing with our DNA again….

  18. 277

    So is the word “use”

    And when the purpose of the “use” is “make,” and you sold the item for that “use,” that’s called “patent exhaustion.”

    Way too much is being made of the artificial separation of make from use – especially in this context and especially with this invention.

  19. 274

    IANAE, what makes you think that when your patented dog got pregnant and gave birth that YOU had something to do with it?

    Easily, the scariest question of the day.

  20. 273

    use it for its patented purpose.

    It is absolutely amazing how far and wide the patent intelligensia is NOT picking up on this critical distinction (and how Bowman’s consel should be flayed for missing this).

    Oh well, I heard the clerks of the Supreme Court read this blog and that they may actually be interested in this critical point.

    There’s always hope.

  21. 272

    Mr. Farmer, I read about the case. Here is a link

    link to en.wikipedia.org

    What is apparent is this:

    1. Canada does not have a well develop law on exhaustion.

    2. Canadian direct patent infringement requires knowledge of the infringement for liability. That is not required in the US or for that matter anywhere else in the world.

    3. Monsanto's contamination of Schmeirser crop made the further use of his own uniquely developed canola brand impossible because he now knew his field contained contamination. It took him 50 years to develop that brand.

    4. Any fair observer would find the result unjust, as Schmeiser obtained no advantage from the contamination, but lost his own unique brand. I would think the Schmeiser has a legitimate cause of action again Monsanto for what it did to Schmeiser.

    5. The Prime Minister of Canada should have intervened on behalf of Schmeiser in some fashion and ordered the a review of the patent laws to end the abuse by Monsanto.

    What a fricken hero that man was.

  22. 271

    The MOT is the real test.

    Canard ALERT.

    (sigh)

    Bilski: MoT not required.
    Prometheus” MoT not sufficient.

    Ned, Are you mutinying against what the Supreme Court has explicitly said?

  23. 270

    Prediction: There will be no meaningful answer from Malcolm to this question.

    By meaningful, I mean that the phrase does not add meaningfully to any conversation.

    My second Prediction: There will never be any accountability on this blog for the types of comments that are Malcolm’s stock in trade.

    C’est la vie.

  24. 269

    I would reply with a [shrug] and stand by, but that’s already been done (and done to far more substantial complaints of poor quality).

    oh wait…

    1) – my “free” in context is simply not how you are trying to spin it here. No surprise, as you feel that all facts should be spun.

    2) – my comment on “sex” and procreation is also being mis-spun. Clearly.

    3) – my read on Prometheus is dead on accurte, while you continue to piddle away with a theory only agreed to by the little circle (and you still don’t seem to get the irony of beingthe first to post to the USPTO link on what the Prometheus case means) – Absolutely hilarious in your self-defeat and reality-denyig modes.

    4) multiple monikers has NEVER been a quality problem on par with the quality problems that I have discussed, never mind the fact that you were one of the first to employ that tactic 9and lied about it).

    5) the review and protection of staff from illicit and unsolicited email is also being spun to hide the guilty and where the real unethical behavior is in such a situation. You have repeatedly misrepresented what I posted, and you continue to dodge counter points I raise. Do you employ ethical screens in your firm? Would such a screen be defeated by a surreptious mailing of a certified letter with information that would violate the ethical screen?

    These may be “off the top of your head,” but each have critical failings in your logic.

    Now, if you want to discuss real issues, use the archive function and return tot he lessons I gave you that you merely [shrugged] and stood by.

    Or come to grips with your blatant lies on configured is structure and the controlling law of the exceptions to the printed matter doctrine, or even return and answer questions squarely in your court, like how do you distinguish claim infringement if you are allowed to patent a product of nature and you accuse someone of having somethign they freely picked out of the warehouse of nature (and free to all).

    Your duplicity is well documented Malcolm. You really do not want a trial on the facts. Especially in comparison to me. You would lose – and lose badly.

  25. 268

    Tell that to the music companies Malcolm.

    If that were true, you would have to shoot some old ladies.

    (It’s the fallacy of electronic copies are free, so where is the harm?)

  26. 267

    Mr. farmer;

    Thanks for the post.

    Monsanto is on it way to being the most reviled corporation in the world. Well on its way.

    I can only hope the Supreme Court wakes up to whats really afoot here.

  27. 266

    Malcolm, if Monsanto wins, it wil be fine with me. But does a human fetus “make” a human? You think I’m just being clever, fine, but it’s kind of a big deal to Monsanto (in case you haven’t heard).

  28. 265

    Just, I agree.

    The origin of “preemption” is Morse. (Richard Stern, the author of the government brief in Benson, has explained that the government lawyers originally wanted to rely exclusively on Morse. They later also put forward the MOT.)

    But if you read Morse, it actually says this:

    1. A principle in the abstract, like a Law of Nature or a Natural Phenomena, cannot be patented.

    2. The Morse court explains, discussing Nielson, that patents are granted for inventive applications of principles.

    3. They then observe that if one were to allow patents on the principle divorced from any practical application, the claim would cover all practical applications and retard the progress in the useful arts.

    Thus, the preemption is a consequence of granting patents on principles. It is not really a test for when a claim is directed to a principle or an inventive application.

    Morse does instruct the viewer to look to whether the claim is directed to a practical application. The MOT is the real test.

  29. 264

    You might look up Monsanto’s suit against the Canadian farmer named Schmeiser. He used no GMO seed for planting canola and used no Roundup to spray on his canola. He did have RR canola in his crop because of cross pollenation with his neighbors fields. Monsanto knew or should have known this was the case. They sued him anyway and cost the farmer around 400K in legal fees. Why did Monsanto sue the East coast dairy for labeling their milk hormane free? Monsanto has a habit of trying to keep all the farmers in line by bullying tactics. The worst offence will end up being corn. It’s pollen moved a considerable distance. I know first hand that non-GMO corn can’t be grown in my area. It all cross pollenates.

  30. 262

    Re: product of nature definition, I tend to agree with your definition. I might add, that the product of nature must also exist before the discovery or invention. It, to me, really is a form of prior art.

  31. 260

    MM, the point is that from the beginning of law, certain things flow from ownership. It is you, the owner that holds the bundle of exclusive rights, not someone else.

    If I own a dog and it has pups, I own the pups. If some Monsanto secret police were to break down the door of my home and take the pups from me and their mother because of Monsanto v. Bowman, there will be h * ll to pay. People will not stand for it.

    This case is being argued in the Supreme Court by kicking as much mud on Bowman as possible. He is being portrayed as a thief, a pirate. But the principle involved in pinning liability on him has broad scope and predictable, and very ugly consequences.

    Trust me, there already is a revolution under way against Monsanto. Bowman may be an unintended hero in this revolt. But the revolutionaries here are right.

  32. 259

    I screwed up the tags. Here are the last couple paragraphs:

    For patent ineligibility purposes, I’d say it’s a composition in the exact form that is claimed, which is in fact produced (not which is capable of being produced, but which is produced) by random processes (i.e., processes devoid of human intent).

    I may need to caveat that further if something I havent considered comes up but that’s what comes to mind as a reasonable, workable definition.

  33. 258

    Assume, for example, you discovered that dark clouds caused favorable growth in a particular bovine hormone that might be useful to cure cancer in humans.

    You can’t patent that. It’s just a fact you discovered.

    If you want to claim a novel and non-obvious process that applies the fact, we can analyze that claim after you draft it.

    if the real problem is with the product of nature exception is not prior art, but lies instead in the reach of man to effectively control mother nature

    There’s nothing “natural” about recombinant beans that didn’t exist until someone isolated a gene from a bacterium and shot the gene into the germ tissue of a plant using a microscopic gun and then selected for stably reproducing beans. At least, there’s nothing more or less “natural” than any other new composition of matter which we allow inventors to “control” for a couple decades.

    What, MM, is a product of nature?

    For patent ineligibility purposes, I’d say it’s a composition in the exact form that is claimed, which is produced (not which is capable/i> of being produced, but which is produced) by random processes (i.e., processes devoid of human intent).

    I may need to caveat that further if something I havent considered comes up but that’s what comes to mind as a reasonable, workable definition.

  34. 255

    Malcolm, my favorite Lone Ranger episode is where the farmer calls the Lone Ranger because the found the Monsanto detectives trespassing in his field. The Lone Ranger approaches the Monsanto detectives and warns them that they are trespassing on private property. They hand the Lone Ranger a copy of the Supreme Court decision in Monsanto v. Bowman, and tell the ranger that they have reason to believe that the farmer is growing patented plants and that it is the farmer, not they, who are trespassing on Monsanto’s rights.

    Whereupon, not knowing who is right, Tonto attempts to arrest the farmer and the Lone Ranger attempts to arrest the Monsanto detectives. A firefight ensues, as everyone in Texas is armed to the teeth, and both the farmer and the Monsanto detectives end up in jail for resisting arrest.

  35. 254

    Farmers have a right to save seed and replant. This is a right they have always had, from time immemorial. It is SOP for most farmers in the world.

    This right is like the right everyone has against a patent owner to use his property and to sell it. You own a dog. That means, IANAE, that you can breed it. It is your fricken dog. Mein Gott. This is basic stuff.

    If I buy a patented dog, do I have the right to clone the dog and sell the clones? I’m trying to figure out what exactly is driving you up the wall, Ned.

    People adopt spayed and neutered animals by the millions every year. Pet sex really isn’t a dealbreaker for most people.

  36. 253

    Where on this planet does a seed make a plant? A seed becomes a plant, but does not make a plant.

    You’re going into the weeds now.

  37. 252

    I think you skipped a step in concluding that “the same logic for the process of planting seeds being patent eligible subject matter can be applied to programing computers and methods of conducting business.”

    It seems like you are crafting a broad rule that encompasses both software and planting seeds. That is not the correct analytical framework. Instead, you need to show that it is impossible to craft a rule that includes planting seeds that doesn’t also include software. If you are successful, this would show that software is necessarily patentable if planting seeds is patentable.

    It seems that you are starting from the position that any sequence of steps is patentable subject matter, which seems to me like a really broad rule.

    Also, I’m not sure if you are talking about what the law is or what it should be?

  38. 251

    MM, I own a file, I have a right to sell it. I have a right to copy it for backup purposes. I am not so sure that I have a right to both sell it and retain a copy if it is protected by copyright.

    I do see the distinction.

    However, I create the file so that I own the copyright, I have a legal right to share it. If congress were to pass some law that said I could not, then I would suggest that congress would have then pass a law that could not be enforced. Something like prohibition or any law against recreational drugs.

  39. 250

    What, MM, is a product of nature?

    You have time and again seem to state that if a product of nature exception exists, it must relate to some preexisting product such that the discoverer of that product might have a problem with the now repealed 102(f).

    But, if the real problem is with the product of nature exception is not prior art, but lies instead in the reach of man to effectively control mother nature, then, would you agree a patent that gives you a right to control the uncontrollable is just a bit ridiculous.

    Assume, for example, you discovered that dark clouds caused favorable growth in a particular bovine hormone that might be useful to cure cancer in humans. Now, you sue someone using dark clouds with his cattle and you win. Draft the injunction, please.

  40. 249

    He Les, that algorithm hardly is a series of mental steps, is it? I think it specifies a specific way of using specific hardware that is so integrated with a machine as to define a new machine or a new machine process.

    Clearly eligible under 101 from initial inspection.

  41. 247

    IANAE, what do they have to prove to prove infringement, IANAE? They do not exclude that all they have to prove is that one plant, one seed in a field is infringing for the whole field to be infringing. The Supreme Court was under the definite impression that that was their theory.

    You seem to assume that Monsanto has to prove that a field has to be wholly made of the patented gene to prove infringement. Where do you get these ideas?

    If all they have to prove is one plant, then they CAN sue every farmer because every farmer will have the patented plant in his field because that is the way nature operates one the patented gene is release into the public domain.

    Circling back, just what do you think Monsanto has to prove to prove that a FIELD or CROP is infringing? The SC was told just one seed.

  42. 246

    IANAE, I like your retort. You do see the problem.

    If the patent owner causes the "infringement," of course their is no infringement in fact.

    Now, do you see the problem of releasing the patented gene into the public domain and then suing people for using it regardless of the fact that they knew it was patented?

    Monsanto exposed its patented plants to the public domain in any number of ways. The plants in the field spread their genes by wind or pollen. The commodity grain further spreads the genes. Soon, every field has at least one plant with the patented gene, and every farmer infringes.

    Now, you say the farmer has to pay if he knows that his field has the patented gene and takes advantage of it by using RR. Really, where in the patent act is it said that using RR is an act of infringement?

    Farmers have a right to save seed and replant. This is a right they have always had, from time immemorial. It is SOP for most farmers in the world.

    This right is like the right everyone has against a patent owner to use his property and to sell it. You own a dog. That means, IANAE, that you can breed it. It is your fricken dog. Mein Gott. This is basic stuff.

    There is something fundamentally wrong with patenting sexually reproduced plants and animals. Fundamentally wrong, and it becomes apparent that trying to protect such inventions is going to involve fundamental changes more than just patent law. We are going to make illegal activity that has long been considered among our fundamental rights.

    I can't wait until the ACLU figures this one out.

  43. 244

    MM, love those little old lady revolutionairies. During 1789, they were instrumental in taking the Bastille and getting the King and that Austrian b * tch ("Let'm eat cake") out of Versailles and to the capitol. Love the little old ladies. Love them.

  44. 243

    “So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter? Yes. See claim 130 of the Monsanto patent, for example.”

    Thanks. Just as I thought, the same logic for the process of planting seeds being patent eligible subject matter can be applied to programing computers and methods of conducting business. All of the anti-patent, anti-software/business method madness has tapered off and won’t survive at the Supreme Court level.

  45. 242

    Other than the childish name calling, how is this:

    “Sorry, here let me put it into ta rd tongue for you, pretty much everyone (aka all soybean farmers) are infringers at this point precisely because they chose to be, OR ARE LICENSING SO THAT THEY ARE NOT INFRINGERS BUT WOULD BE SANS LICENSE.”

    any different than this?:

    “What the judge meant is, because Monsanto seeds are the only seeds around, everyone who does not want to buy Monsanto seeds would be force to infringe because no other seeds are readily available”

    In practical effect, Monsanto’s Patent has preempted soybean farming. Therefore, according to SC logic, Monsanto’s claims are abstract and invalid under 35 USC 101.

  46. 241

    The claims, not the decision. The decision was the easiest in the history of patent law. I’m saying that among the various “reasons” the claims were invalid is because infringement would have hinged on whether the actually measured metabolite levels fell within the range set forth in the claims. Same thing for my claim. Infringement cannot hinge on a particular “result” (e.g., you infringe if a person is A/A, A/B, or B/B, but do not infringe if the person is something other than that). Everybody agrees that Bowman can put tiny little “googly eyes” on a commodity seed he purchases and put it on his desk as a pet (I’m thinking of the Christopher Walken skit on SNL “Indoor Gardening Tips From a Man Who’s Very Scared of Plants”). But if he places the seed in some dirt, sprinkles some water on it, and out sprouts a leafy soybean plant, he infringes. Soybeans have been around a long time. The “ability” of a soybean seed to turn into a plant has practically nothing to do with Bowman. Monsanto prevailing (which I FULLY expect to happen) is a problem. Won’t bug me personally or anything.

  47. 240

    When is a recombinant bean ineligible under 101?

    When it’s a human bean.

    Thanks, folks. I’m here all night.

  48. 239

    Algorithms are abstract? No, as a class, they are not. A particular algorithm might be described in the abstract, but not all algorithms are not abstract.

    For example, this claimed algorithm is very specific and not abstract in the least:

    1. A method for controlling processing elements in a multiprocessor architecture to provide improved throughout for Fast Fourier Transform/Inverse Fast Fourier Transform (FFT/IFFT) computations, the method comprising the steps of:

    computing, on a multiprocessor architecture including “P” processing elements each butterfly of the first “log2P” stages of an FFT/IFFT on either a single one of the processing elements or on each of the “P” processing elements simultaneously;

    distributing the computations of the butterflies in all the subsequent stages of the FFT/IFFT among the “P” processing elements such that each chain of cascaded butterflies consisting of those butterflies that have inputs and outputs connected together is processed by the same processing element to thereby eliminate the need for inter-processor communication among the processing elements after the computation of the first “log2P” stages of the FFT/IFFT;

    wherein the distributing of the computation of the butterflies subsequent to the first “log2P” butterflies is achieved by assigning operand addresses of each set of butterfly operands to each processing element in such a manner that the butterfly is processed by the same processing element that computed the connected butterfly of the previous stage in the same chain of butterflies; and

    wherein the desired assignment of operand addresses is achieved by deriving the address of the first operand in the operand pair corresponding to the “ith” stage of the computation from the address of the corresponding operand in the previous stage by inserting a “0” in the “(i+1)th” bit position of the address, while the address of the second operand is derived by inserting a “1” in the “(i+1)th” bit position of the operand address.

    link to google.com

    The Supreme court says claims are abstract when they preempt something.

  49. 238

    So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter?

    Yes. See claim 130 of the Monsanto patent, for example.

    I don’t think statutory subject matter is an issue here, except for a few bizarre assertions that a bean is abstract.

  50. 237

    If Bowman plants the seed and it makes a seed that is covered by the claim, then he infringes. But if he plants the seed and it does not make a seed that is covered by the claim, then he does not infringe.

    2+2 is still equal to 4.

    Word.

  51. 236

    Hans: Malcolm, one of the problems with Prometheus was this: what if the level of metabolites detected was outside the range?

    I’m not sure if you’re referring to a problem with Prometheus’ claims or with the Supreme Court’s decision. But for the record, there really were no measured metabolite levels that were “outside the range” of Prometheus’ claims. The claims covered thinking about the relationship of the measured levels to the recited “magic levels” regardless of whether the measured levels of metabolites were zero or lethally high.

    I discover that a genetic locus, X, has two alleles, A and B. I discover that if you are A/A or A/B, you will get cancer, but if you are B/B, you will not. I obtain a patent claim as follows: Method for predicting susceptibility to cancer comprising determining genotype at locus X, wherein A/A or A/B indicates susceptibility to cancer, and wherein B/B does not. Suppose later it is discovered that there is a third allele, C. If I perform a test to determine a person’s genotype at locus X, and the person is A/C, or B/C, do I infringe?

    The correct answer is that your recited claim is ineligible under Prometheus so the infringement question is moot. Let’s assume that Prometheus was decided differently and you can now patent methods of thinking about “correlations” of data obtained using old methods. If you don’t think about the claimed correlation, you don’t infringe. In your hypothetical, you don’t think about the claimed correlation, so you don’t infringe.

    Note that if someone shows that C is invariably linked with the presence of A or B and someone can show that you were aware of this fact, then the infringement analysis changes completely. And it’s that kind of ridiculousness that the Supreme Court very wisely laid to rest in a coffin sealed with nine big nails.

    Honestly, I don’t see how this has anything to do with the Monsanto case.

  52. 235

    CORRECTION: None of the above is a law of nature or physical phenomenon reduced to steps.

  53. 234

    “That agreement includes a promise not to save and replant seeds. Monsanto has argued that use restriction (or license limitation) is binding on subsequent purchasers – even those who purchase the seeds in a fungible commodity market without agreeing to any restriction.”

    Is a use ( act ) of planting seeds 101 statutory subject matter in the view of the Court?

    If so then why wouldn’t all such acts be statutory subject matter from; selling a product , to programming a computer?

    Seems they would to me.

    They are all processes.

    Require a series of steps.

    None of the above is a law of nature or abstract idea reduced to steps. And there is certainly nothing abstract about the process of selling a product, programming a computer, or planting seeds when reduced to specific steps.

    Of course you can always argue it’s all been done before, or obvious to try, maybe. Then that’s 102 or 103.

    And perhaps you can argue some of the steps are not specific enough but then you are getting into 112.

    So for as 101 is concerned could the process of planting the seeds be patent eligible subject matter?

  54. 233

    Hans Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?

    If we’re talking about a composition claim to a Monsanto patented bean/seed, then there is no infringement until the bean is produced (as a direct result of Bowman’s acts).

    If Bowman kills the plants before they produce beans, that particular patent is also not infringed by Bowman.

  55. 232

    The site’s archive feature can be used to show the many (MANY) times that you claim to not know what “effectively” means when it is convenient for you

    More likely, anon, I was simply asking you to provide your definition for the term in the context of an otherwise incomprehensible point your were trying to make. Or I was refusing to answer a question that I’ve answered a hundred times already, e.g., what does the term “effectively” mean in the context of a statement such as “Claims in the form [oldstep]+[newthought} are effectively claims to the newthought itself, at least from the standpoint of an otherwise lawful practitioner of the prior art [oldstep]”.

    But yes, the archive is useful. It shows, among other things, that (1) you made an –s out of yoursel by failing to understand what the term “free” means in the context of a “free market”; (2) that you made an — out of yourself by failing to understand the difference between “sex” and “reproduction”; (3) that you completely misunderstood the “actual law” that would be applied by the Supreme Court in Prometheus; (4) that you used s-ckp-ppets for years to create an imaginary group of “friends” who always agreed with you and participated in your habit of persaonlly insulting anyone here who you perceived to be “anti-patent”; and (5) that you made up from whole cloth a story about an imaginary law firm that uses staff people to receive, open, review and discard registered letters to patent attorneys when those letters refer to prior art that might be impact a firm client’s patent rights.

    That’s just off the top of my head of what the archives show. I could come up with more but that seems like plenty for now.

  56. 231

    No, because Siemens already sold the right to use the invention when it sold the machine to A. So Siemens’s right to prevent others from using or selling the invention are exhausted. Now if B disassembles the machine, figures out how it works, and starts mass producing copies of it, then Siemens has a cause of action for patent infringement.

  57. 230

    This discussion gets more confused the further it strays from the words in the statute. The word “plants” is not in 35 USC 271. The word “makes” is.

    If Bowman plants the seed and it makes a seed that is covered by the claim, then he infringes. But if he plants the seed and it does not make a seed that is covered by the claim, then he does not infringe.

    2+2 is still equal to 4.

  58. 229

    My completely dead-serious response is this: 2 + 2 = 4. If Bowman plants the seed and it turns into a plant, he infringes. But if he plants the seed and it does not turn into a plant, he does not infringe. That is 2 + 2 = 5.

  59. 228

    “Could Siemens come after hospital B for infringement, even though it received compensation for the machine from A?”

    Yes. Should it win? No. Other laws apply to deter B’s conduct.

    “What if, among the relevant patents, was a method patent on the use of the MRI machine?”

    Quanta says Siemens has no cause of action as to A, thus (in my opinion) it has no cause of action as to B. Is this the morally correct result? I don’t know, but again, other laws apply to deter B’s conduct.

    Where is the requirement that Siemens must sell an MRI machine merely because it has a patent on the machine.

  60. 227

    Of course, soybeans aren’t direct infringers, but Akamai changed the rule that there must be a direct infringer for inducement liability. The statute says “induces infringement” and not “induces direct infringement”.

    I wouldn’t bet the farm on an inducement theory based on the actions of soybeans, but Akamai opened the door for this type of theory. There is still the issue of can you “induce” a plant to take actions.

    I appreciate your concern. I do recognize that calling this theory is highly suspect.

  61. 226

    Hans–

    See my comment on the other thread at 2:50 pm on Oct 9, 2012:

    “The CAFC held that in having planted the seed (presumably in such a manner that it would germinate), the grower (Bowman) creates “a newly infringing article”. (Not to mention the fact that he contributed to the thriving of the resulting plant by applying glyphosate herbicide to competing plants, and likely also contributed thereto by irrigation and/or fertilization of the plant.)

    Therefore, according to the CAFC (and also to logic, in my opinion) “the farmer” DID make a patented article. Remember, according to the claims, patented articles include molecules, plant cells, and seeds of those plants.

    (Not to mention that Bowman appears to have admitted to having infringed the method claim 130.)

    “In this case Monsanto is [correctly] claiming that [but for the actions of defendant Bowman, the seeds in question would have contributed nothing to the production of infringing articles].”

    In your recent posts, you are merely stating conclusions, without supplying any argument or supporting facts.

    What is your detailed response to my position in that other thread, given both the oral and what you know about the facts of this case?

  62. 225

    Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?

    Yes, obviously. Unless “attempted infringement” is actionable somehow. They don’t give a Nobel for attempted chemistry either.

    You build a factory to churn out infringing product. The factory burns down, full of raw materials but before production starts. No infringement. Easy, right?

  63. 224

    “No, that can’t be right. Pretty much everyone buys their soybean seed from Monsanto. So, pretty much everyone is not an infringer.”

    Sorry, here let me put it into ta rd tongue for you, pretty much everyone (aka all soybean farmers) are infringers at this point precisely because they chose to be, OR ARE LICENSING SO THAT THEY ARE NOT INFRINGERS BUT WOULD BE SANS LICENSE.

    “What the judge meant is, because Monsanto seeds are the only seeds around, everyone who does not want to buy Monsanto seeds would be force to infringe because no other seeds are readily available”

    No, nobody is being “forced” to infringe because of lack of seeds, farmers have gas to haul seed 100 mi. or further. One large truck load should do. You really don’t know anything about farming do you? This is why it is so hard to talk to you about things Les, your ta rdation makes it really hard to even talk about basic things. The seeds from Monsanto are being used because everyone <3's them, not because they're the only seeds around. Farmer Bowman didn't want to use them because of $$$. But he didn't want to use the seed from 100 miles away because it wasn't roundup ready, and he figured he'd get enough roundup ready from the grain elevator to ensure a decent crop. He was correct.

    You're having a very hard time with the basic facts of the case lester jester, as usual, and this is the last time I'm going to bother to correct you. It seems rather clear which case the way will go, and it is not worth my time to teach you. As I've offered in the past, I can teach you further for some $100 per hour, with a one hour minimum.

  64. 223

    Malcolm, one of the problems with Prometheus was this: what if the level of metabolites detected was outside the range? I discover that a genetic locus, X, has two alleles, A and B. I discover that if you are A/A or A/B, you will get cancer, but if you are B/B, you will not. I obtain a patent claim as follows: Method for predicting susceptibility to cancer comprising determining genotype at locus X, wherein A/A or A/B indicates susceptibility to cancer, and wherein B/B does not. Suppose later it is discovered that there is a third allele, C. If I perform a test to determine a person’s genotype at locus X, and the person is A/C, or B/C, do I infringe? What does this have to do with Monsanto v. Bowman, you say? Suppose Bowman buys two commodity seeds and plants them in his field side-by-side. One turns into a soybean plant, and one does not. He infringes in the first instance, but not in the second? Really?

  65. 222

    “or the sake of argument, lets say that were correct. Benson prempted all uses of THE algorithm, THE ONE CLAIMED.

    Similarly, Monsanto’s claims preempt all uses of THE soybean, the one claimed. ”

    Correct, the difference is, algorithms are abstract, soybeans are not. Which I know blows your ta rd mind, but sorry bro, that’s just how it is.

  66. 221

    You’re doing that l_ie-ing thing again, anon. Bad habit of yours.

    The site’s archive feature can be used to show the many (MANY) times that you claim to not know what “effectively” means when it is convenient for you, and yet know exactly what it means when it is likewise convenient for you.

    Once again – you claim “l_ie” and you cannot (and will not) provide what the explicit l_ie is.

    Prof. Crouch, do we reeally need to put up with this obvious c_rrp?

  67. 220

    Truly, most people would not be able to understand that they can own something outright and not be able to use it for its intended purpose.

    What’s the intended purpose of an electronic file?

    I’d say it was for easy and exact replication so it can be freely shared with others.

    Maybe you do have a point, Ned. ;)

  68. 219

    Justice Breyer: “With the exception of robots and human surrogates, non-humans are not covered by the patent law. In other words, a genetically engineered seed can infringe a patent, but a seed can not be a “direct infringer” of a patent under our patent laws.”

    In fact, the “exception” is completely unnecessary. If I create, buy, or rent a robot, robotic arm or computer or any machine capable of performing a method and it performs a method that infringes a patent (whether it’s a method of creating itself or any other method), I’m the direct infringer.

    Cases on the margin, e.g., the machine that malfunctions and infringes only once every 10,000 cycles, the machine that is stolen by my neighbor and infringes on his property, etc. are decided on their facts and don’t threaten the status quo.

  69. 218

    Scalia asked, in the, if methods are patentable context, then why weren’t there patents to horse whispering back in the day.
    1) There were patents on methods for breaking/training horses

    My favorite Lone Ranger episode is the one where the owner of a small ranch is being harassed by patent trolls. The Lone Ranger tells the ranch owner he might as well take a license because it’ll cost too much money to get a proper opinion and a re-examination. Then the patent trolls make the mistake of sueing Tonto. At the end of the episode, the patent trolls end up in jail because the Lone Ranger discovers they are stockpiling illegal weapons in anticipation of the next civil war.

  70. 217

    sincerely hope that you even understand what the products of nature judicial exception even means.

    Only you know what it means, Humpty! But for some reason you never want to explain it to us or tell us how it works in practice.

    even forget what such well-known (and orthodox) terms like “effectively” means

    You’re doing that lie-ing thing again, anon. Bad habit of yours.

    Since you are the expert on everything (except sex), why don’t you tell us what the term “effectively” means in the context of a chemical composition claim where that claim covers a composition that is novel, non-obvious, narrower in scope and indisputably distinct from any composition found in nature? What does the term “effectively” mean in that context? Apply it to that situation. If you need additional facts, let us know exactly what those facts are and how they would impact the conclusion regarding eligiblity of such a claim.

  71. 216

    All Monsanto has to do to prove infringement is to find just one seed or plant in a field prove infringement. Since virtually every field what have such plants or seeds regardless of the intent of the farmer, every farmer is infringing, regardless of anything else.

    Do you think Monsanto is going to sue everybody who has just one patented seed or plant in a dozen acres or more? How would they even find out? Do you think they’ll get an injunction or royalties from a farmer with a single infringing plant in a huge field of demonstrably non-infringing crop? Neither does Monsanto.

    In any event, that’s just about the opposite of Bowman’s facts. As much sympathy as you (and Monsanto!) might have for the poor farmer with a lone Roundup-Ready plant surrounded by twenty acres of perfectly lawful crop, Bowman is entitled to none of that.

  72. 215

    There is no patent on Roundup ready that we are talking about here.

    This is a patent infringement action, Ned.

    This case must be justified on the principle that one can own a seed free from the patent and still cannot use that seed without infringing a patent. That does not make any sense.

    Does it make sense that you can’t just buy a patented article and make a bunch of copies without infringing a patent? Because it makes perfect sense to me, and to the Supreme Court, and to the Federal Circuit (see also Global-Tech), and that’s exactly how this case will be justified.

  73. 214

    If you told people that they can own a pet outright, but could not sell it, or breed it, without paying a royalty to Monsanto, they would react in open revolt.

    Right, like the famous Plant Patent Act Revolt of 1933 when armed guards had to shoot old ladies who insisted on dividing their patented epimideums.

  74. 213

    Ned –

    I wonder that too. But the court makes stuff up too. For example, during Bilski, Scalia asked, in the, if methods are patentable context, then why weren’t there patents to horse whispering back in the day.
    1) There were patents on methods for breaking/training horses; and
    2) There were no patents to “horse whispering” per se because the Jedi mind trick as applied to horses did not exist.

  75. 212

    IANAE, in an area where 90 to 95% of all plants and all seeds are already the patented variety, I would think it is almost impossible to find seeds that do not have the patented variety in them. The Supreme Court was aware that this is a problem, when they observed that even if one seed of the patented variety were in the crop, the crop would be infringing under the theory of the Federal Circuit.

    All Monsanto has to do to prove infringement is to find just one seed or plant in a field prove infringement. Since virtually every field what have such plants or seeds regardless of the intent of the farmer, every farmer is infringing, regardless of anything else.

    I think some of the Supreme Court justices are very concerned about this.

  76. 211

    The amount of confusion about this issue, as expressed on this board, is interesting.

    My views were, I think, completely presented on the other thread–BUT, I have a hypothetical question for everyone about the so-called “doctrine of patent exhaustion”:

    Let’s say that Siemens sells an MRI machine to hospital A, which MRI machine is “patented”. Further, let’s assume that the machine was delivered in lawful fulfilment of the contract of sale.

    I think everybody is in agreement that hospital A can sell the MRI machine, of which it is now the legal owner, without being liable for infringement.

    But how about this: while sitting on the hospital’s dock, the machine is stolen by hospital B, which plugs it in and uses it. A receives the value of the machine through insurance. B is not a bona fide purchaser for value, and is not the legal owner of the MRI machine.

    Could Siemens come after hospital B for infringement, even though it received compensation for the machine from A?

    What if, among the relevant patents, was a method patent on the use of the MRI machine?

    Of course I have my own thoughts on this, but I thought I’d throw it out there…

  77. 210

    IANAE, a booze maker polutes the lake with his booze. What gives him the right to sue everyone who drinks lake water for infringement?

    You think that case isn’t going to get tossed with sanctions?

    He has the “right” to waste his money filing a lawsuit that is stillborn and goes nowhere and leads to sanctions.

    Here’s a counter-hypo for you. I patent a shirt with a splotch design. Then I stain your shirt with an identical splotch and sue you for infringing. What gives me the “right” to do sue you?

  78. 209

    Except that is not the law. (always has not been)

    Direct Infringement has no intent element.

    Justice Breyer: “With the exception of robots and human surrogates, non-humans are not covered by the patent law. In other words, a genetically engineered seed can infringe a patent, but a seed can not be a “direct infringer” of a patent under our patent laws.”

    There you go. Read it and weep. I mean, start crying now because it’s that easy.

  79. 208

    IANAE, why are you talking about Roundup ready? There is no patent on Roundup ready that we are talking about here. This case must be justified on the principle that one can own a seed free from the patent and still cannot use that seed without infringing a patent. That does not make any sense.

    From the discussions in the oral argument in Supreme Court, was made clear that the Federal Circuit justified its holding on its conditional sale doctrine which the Supreme Court overruled in Quanta. Under Quanta, one cannot sell an item in place post sale restrictions on it. It is free from the patent. The patent rights are exhausted. But the Federal Circuit said you could. You could sell that seed, the buyer can own it, and still the buyer could not use it for its patented purpose.

  80. 207

    the destroyed credibility of Malcolm

    HUMPTY HAS SPOKEN!!!!

    My credibility has therefore been destroyed. It doesn’t matter that my thoughts on this topic and others accurately reflect those that will be adopted (and have been adopted) by the Supreme Court.

    All that matters is what Humpty says.

    And Justice Breyer is a rude, rude, rude man. Someday the Harriet Tubman of Patent Law is going to show up and challenge him to a swordfight and then we’ll see whose army is shinier!!!!!!!

  81. 206

    Anon; "In most cases when you sell something and wish to retain some future reversion, the sale must explicitly call that out.

    It appears that the SC is rewriting (patent) law again so as to make the future reversion automatic. "

    We also need to point out that one typically has to have privity for future conditions to be binding via contract. Restrictions can run with real property primarily because those restrictions can be recorded in some fashion.

    Truly, most people would not be able to understand that they can own something outright and not be able to use it for its intended purpose. If you told people that they can own a pet outright, but could not sell it, or breed it, without paying a royalty to Monsanto, they would react in open revolt. They might even tear up the Constitution to the extent it authorized protection of intellectual property.

    The Supreme Court needs to tread lightly here.

  82. 205

    I believe that I am the only one that has affirmatively posted that ALL of my posts are purely my personal viewsd and have no connection whatsoever with any third party representation.

    You’re also the one who used s*ckpuppets for years in order to create the impression that you were fighting a “vocal minority.” Meanwhile, you were outposting everybody here with insults and weird barely comprehensible nonsense.

    Now you don’t use s*ckpuppets anymore because Dennis busted you but nothing else has changed.

  83. 204

    I sincerely hope that you even understand what the products of nature judicial exception even means.

    To date, you have shown no such understanding and hopelessly kick up dust and even forget what such well-known (and orthodox) terms like “effectively” means.

  84. 202

    anon: asexual reproduction is a form of sex.

    OHOOHOHAHHAHAHAHAHAHHAHAHAAHAHAHA!!!!!!

    ROTFLMAO!!!!!

    HUMPTY HAS SPOKEN!!!!! BOW DOWN!!!!

    Black is a form of white. Up is a form of down. Insanity is a form of reason. Sending prior art anonymously is sleazy and unethical but using mailroom staff to screen and discard registered letters containing information that can affect a client’s patent rights is perfectly acceptable — just don’t tell your insurance carrier!

    Truly anon is the gift that never stops giving.

  85. 201

    anon, who thinks all reproduction is sexual”

    Nice mischaracterization and spin to apply out of context.

    Hardly a mischaracterization. Perhaps if you learned to write English in the first place and if you weren’t such a d—-head when people asked you to explain what you wrote, you wouldn’t end up being “mischaracterized” quite as often.

    Poor Humpty.

  86. 199

    anon: It’s a law of nature that seeds will propagate and make more seeds.

    Monsanto has said: just apply it.

    The seed compositions of Monsanto’s claims were not found in nature prior to Monsanto creating them.

    I sincerely hope (beyond reason) that you are beginning to see why your famously vague and hand-wavey “product of nature” judicial exception theory is going to need a few caveats.

  87. 198

    Actually, the “Round-Up patent” was the original patent on the chemical

    That’s nice. Nobody ever said anything to the contrary.

    I did write the following: he basic idea of engineering organisms to be resistant and selectable pre-dates the Round-Up patent by many years.

    Still true.

  88. 197

    “Pollination by wild winds falls into which camp….?”

    Not Bowman’s camp, which I believe was my point from the beginning.

    Anybody whose field is pollinated by wind by infringing crops from somebody else’s farm is not an infringer. Waxman pretty much admitted that. I agree with him on the point, always have.

  89. 196

    There’s a very big difference between wild and farmed. No matter where you get your food, you should know that.

    Pollination by wild winds falls into which camp….?

    Or to jump to Ned Heller’s ravenous patented fish example, let loose into the oceans, and replaces all other commerical fish….?

    The law doesn’t need to be changed, it just needs to be properly articulated by a really influential court.

    See my post at Feb 20, at 7:00 AM. Thanks for agreeing with me.

  90. 195

    And Leopold, seeing as you “apparently now do,” that the point has been made – you yet>/i> continue in your monomaniacal postings against a single person.

    Do you see the lack of integrity evidenced by your actions?

    (that’s a rhetorical question)

  91. 194

    If Bowman is an infringer, then Post owns the wild fox merely by chasing it.

    There’s a very big difference between wild and farmed. No matter where you get your food, you should know that.

    If Bowman doesn’t make the soybean plant, what does he do all day?

    I just don’t know how SCOTUS is going to get there.

    It’s easy to get there. Bowman is a farmer. Farmers make copies of plants and animals under controlled conditions. That’s pretty much all they do. Bowman specifically chose to make copies of Monsanto’s patented plants. The fact that agriculture exists is a good demonstration that “accidental” crops are not an issue in this case, and not a reason to invalidate biotech patents as a class.

    The only minor snag is that Waxman muffed the “modification in patent law” question. He should have stuck to his position that infringement currently requires an affirmative act. The law doesn’t need to be changed, it just needs to be properly articulated by a really influential court.

  92. 193

    Remind us again what your clients think of software patents.

    Posting in a personal context – regardless of what clients think – and posting as a shill are world’s apart.

    Your attempted obfuscation notwithstanding.

    To date, I believe that I am the only one that has affirmatively posted that ALL of my posts are purely my personal viewsd and have no connection whatsoever with any third party representation.

    I personally invited Ned Heller to make the same statement.

    He could not.

    Can you, IANAE? Can you make the statement that your posts are completely untethered to third party interests? Do you recognize the point that NWPA touches on? Do you remember the jobposting that indicated that blogging was in fact one of the duties of the hired person?

    And finally, do you recognize the low quality attributes that I have correctly identified as directly linked to this behavior, and that this beahvior is ALREADY EXPRESSLY DISALLOWED per the site’s terms of use? (the very same terms of use that Leopold tried to spin to mean something else?)

    Put. The. Shovel. Down.

  93. 192

    And with anon, who thinks all reproduction is sexual

    Nice mischaracterization and spin to apply out of context.

    This is exactly the type of tr011ing that should be banished and yet no action whatsoever is taken.

  94. 191

    Why not simply pay people outright then for a patent application and then open that application to all for follow on innovation immediately? Why have any patent term whatsoever?

    Funny point here is that the constitution did not give the judiciary the right to write patent law. Pollicy, or no policy.

    Or does the rule of law simply not matter anymore?

  95. 189

    “I expect the court would know better than to define all patent claims as “abstract”.”

    I expect that too. But because the court wanted a result that was not justified by the law, they took us through the looking glass and made up this nonsense about a claim being abstract if it preempts something.

  96. 188

    Not trolling. And yes, I understand what is at stake. I have gone back and forth in my mind over this case, and while I’m not exactly happy about it, I am now confident in stating my opinion that Bowman is not an infringer. He doesn’t “make” the soybean plant, and he doesn’t induce or contribute to an infringement. If Bowman is an infringer, then Post owns the wild fox merely by chasing it. I believe Monsanto should just have to incorporate use-restriction technology into its seeds. Having said all of that, I believe SCOTUS will side with Monsanto. That result won’t bother me personally, but I just don’t know how SCOTUS is going to get there.

  97. 187

    “”pretty much everyone” aka “pretty much all soybean farmers” are infringers at this point precisely because they chose to be, voluntarily. They can just as well choose not to be, and still grow soybeans.”

    No, that can’t be right. Pretty much everyone buys their soybean seed from Monsanto. So, pretty much everyone is not an infringer.

    What the judge meant is, because Monsanto seeds are the only seeds around, everyone who does not want to buy Monsanto seeds would be force to infringe because no other seeds are readily available. i.e., in practical effect, Monsanto’s claims preempt all of soybean farming.

  98. 186

    I imagine based on the recent job posting that they are writing posts that agree with detailed policy goals of their employers.

    Remind us again what your clients think of software patents.

  99. 185

    Humpty, however, is correct.

    For rational people, accuracy carries substantial weight. For clowns, perhaps, not so much.

  100. 184

    I agree completely that the paid bloggers on this board make it very difficult to have a good conversation. They clearly have an agenda and endlessly play games. They don’t play fair.

    And, the number one reason I don’t like them is that they will never, ever change their opinions as they paid to have their opinion. I imagine based on the recent job posting that they are writing posts that agree with detailed policy goals of their employers.

  101. 183

    Of course, anon. We are talking about incentives for people to innovate. This case is all about policy trumping established patent law to create new patent law to accommodate new technology.

    This is good and right. CJ Roberts has it figured out. Capital is a very good indication of incentive.

  102. 182

    by the definition of an abstract claim provided by the court, a claim that preempts all of something, is abstract.

    I expect the court would know better than to define all patent claims as “abstract”.

    But you might want to have a word with AI, who thinks all claims are business methods. And with anon, who thinks all reproduction is sexual. Maybe you guys could go in together on a relatively affordable dictionary. Just don’t make any copies of it.

  103. 181

    IANAE, You make my point for me, probably without even realizing it:

    Well, somebody has to do it, because you certainly aren’t.

    C’est la vie!

  104. 180

    It is very difficult to find non-roundup ready seed. It is not practical to do so.

    Once again, Les says something is impossible while the people who could contradict him are too busy actually doing it.

    Ten percent. Ten percent in a place where quite a lot of soybeans are grown. In a place where it’s sort of trendy and profitable to identify your produce as non-transgenic when it is.

    Ten percent is a lot, if it’s something you’re looking for.

    he had to get them from out of state

    Is Monsanto in everybody’s state? I honestly don’t know, I’m not a farmer. Maybe you can get free shipping, like when you buy an Apple.

  105. 179

    There is no guarantee in patent law that you will make money with a valid patent.

    Validity is completely divorced from market acceptance and profit.

  106. 178

    “Second of all,…[childish name calling removed] even if the claim did so preempt as you dream that it does, preempting the planting of soybeans is not preempting something abstract”

    Yes it is, by the definition of an abstract claim provided by the court, a claim that preempts all of something, is abstract.

    “or preempting a law of nature or a natural phenom. ”

    Many would take the position that a soybean is a natural phenom and that the round-up ready gene that was spliced into the Monsanto soybean is also a natural phenom as it was taken from some other organism. However, this is not to concede the point that a claim has to preempt a natural phenom to be classified as abstract under the courts teaching. Bilski didn’t claim a natural phenom or law of nature. According to the court, all that is needed is that it preempt something. Which of course, all claims do.

  107. 177

    IANAE,

    You make my point for me, probably without even realizing it:

    Also, he didn’t even need to go that broad and destroy his credibility

    Do you recognize that Leopold only sees the red cape of “anon said” and completely ignores the destroyed credibility of Malcolm – which was what my post pointed to?

    Clearly a monomaniacal focus on me rather than on the true effluent present.

    I bet that he still does not realize this.

  108. 176

    “Benson’s claims however WERE drated to preempt all use of the algorithm. On purpose and with feeling. ”

    For the sake of argument, lets say that were correct. Benson prempted all uses of THE algorithm, THE ONE CLAIMED.

    Similarly, Monsanto’s claims preempt all uses of THE soybean, the one claimed.

    Therefore, like Benson’s claims, Monsanto’s claims are abstract, according to the logic of the court.

  109. 175

    “I can in fact go into my back yard, and, if I so choose to, plant a non-GMO seed and grow a non-GMO soybean.”

    No, you can’t, not “practically”. It is very difficult to find non-roundup ready seed. It is not practical to do so.

    “Farmer Bowman has, in fact, planted a non-infringing crop this very year.”

    Yes, but he had to get them from out of state (Somewhere in Ohio I believe) when there was a grain silo just down the road. It is not “practical” for a farmer to buy seed from out of state when he could be buying it down the road a piece.

  110. 174

    If you think by “touch a nerve” you mean to imply that you have made a valid point, then the answer is easy:

    No.

    If you think by “touch a nerve” you expose the fallacy that this blog engenders a fair and balanced, intellectually honest discussion, then yes. But you have only made my point for me, as the items that I have pointed out as those things causing low quality blogging are the very things that the small circle use as their stock in trade in their constant crusades.

  111. 173

    You are a funny person, anon.

    It’s even funnier to think about how his ridiculously broad definition of “sex” to include all reproduction makes the “soybeans are impossible because evolution requires sex” meaningless. Soybeans do, in fact, reproduce.

    Also, he didn’t even need to go that broad and destroy his credibility. Self-pollination is a recognized form of sexual reproduction, as the term is understood by people who actually know things. As opposed to, say, asexual reproduction (which plants also do), which is responsible for the evolution of antibiotic-resistant bacteria.

    I’m guessing this is some kind of “self-defeat”. I’m going to define it as the kind involving arrows.

  112. 172

    Is there a length restriction? When ever I try to post anything longer than a paragraph, my posting does not appear. This is the case with firefox and IE.

  113. 169

    IANAE, so you are justifying the result in this case because of the peculiarities of this plant where with most other plants, the result may not be justifiable.

    I am justifying the result in this case for a lot of reasons. This actually isn’t one of them.

    If you go and buy seed, and plant it, and select the Roundup-Ready progeny for replanting the following season, and wind up with acre after acre of infringing seed, year after year, it’s not even relevant that seed might have randomly blown onto your land. Just like if you build a factory and churn out truckloads of infringing product, it’s not relevant that some hypothetical entrepreneurial trespasser might have built his own factory on your land for that purpose. You don’t get any sympathy owing to that hypothetical inadvertent infringer, because you deliberately infringed.

  114. 168

    When you get challenged on substance

    Putting asexual reproduction into the context of reproduction and “S_ex” is hardly a personal attack.

    Unless you think that stating things appropriately for a discussion is a “personal attack….”

  115. 167

    Comments being pulled down has nothing to do with the terms of use – nice o_bfuscation there Leopold.

    Clearly, the item that you a_ssailed me on in regards to terms of use was third-party-influenced postings and blatant l_ies.

    We still have some very clearly postings of this nature and the site operator turns a b_lind eye to these direct v_iolations.

    Ned Heller has all but admitted that his posts are a s_hill for a third party interest. Also, clearly Prof. Crouch has stated that blatant l_ies are not allowed. And yet Malcolm continues with blatant l_ies concerning the state of law in regards to the exceptions to the printed matter doctrine (which you have forever and a day remained quiet upon).

    This too continues unabated and unchecked and with the tacit if not outright approval of the site operator.

    Hey – it’s his site and he can do what he wants. He can post rules and then ignore those rules for certain viewpoints. He can say he believes in the First Amendment, and then turn around and t_rounce that view with selective content c_ensorship.

    C’est la vie.

    But let’s not kid ourselves as to the b_ully-p_ulpit nature of what is going on here.

    And let’s not kid ourselves as to your m_onomaniacal bent. You respond to one single poster in a “correcting mode.”

    One.

    And given the level of e_gregious c_rrp on these boards, and whose viewpoints you align with, none of this is surprising.

    Spare me your f_alse s_ermons, as you trip over the arrows at your feet.

  116. 166

    Propagation is necessary for evolution. Propagation (in this larger context includes the “s_ex” of a_sexual reproduction).

    You would make a fine examiner, anon. Sure, “propagation” includes asexual reproduction. But “context” doesn’t change the meaning of “asexual” to “sexual.” Your statement was that “asexual reproduction is a form of sex.” Your statement is still wrong.

    Sort of what like “terms of use” mean on a web site. Or do you still think that such a term purely means a contractual item meant to protect the site owner?

    The best I can tell, only one of us is having trouble understanding and following the terms of use on this site. None of my comments have been pulled down, so far as I know.

    You have fallen off the w_agon yet again. It’s amazing that with all the c_rrp that gets posted, the only time you are r_iled enough to make a comment is when the comment begins “anon said” You should look into this m_onomaniacal behavior of yours.

    Your bluster is pretty predictable, anon. When you get challenged on substance, even on minor things like this, you go off on the personal attacks. Carry on…

  117. 165

    but he is not allowed to harvest those seeds.

    Nope.

    Too late – he has already “made” the seeds. Whether he harvests them or not, whether he leaves them in their pods or not simply does not matter. Monsanto’s counsel saying seeds in pods are not seeds is pure malarky.

  118. 164

    Bowman’s counsel didn’t blow it. – Bowman has a losing case

    Completely wrong on both accounts.

  119. 163

    Context Leopold, Context.

    Propagation is necessary for evolution. Propagation (in this larger context includes the “s_ex” of a_sexual reproduction).

    If you didn’t spend your time looking for red capes, you might be able to spend your time understanding the larger concepts.

    As to the “free market” comment – you have a difficult time letting go, don’t you? Sort of what like “terms of use” mean on a web site. Or do you still think that such a term purely means a contractual item meant to protect the site owner?

    You have fallen off the w_agon yet again. It’s amazing that with all the c_rrp that gets posted, the only time you are r_iled enough to make a comment is when the comment begins “anon said” You should look into this m_onomaniacal behavior of yours.

  120. 162

    And note that asexual reproduction is a form of sex.

    LOL. Kind of like how the term “free market” has never meant “free,” right?

    You are a funny person, anon.

  121. 161

    I understand the “birds and the bees,” anon. I also know tohat evolution doesn’t require sex.

    Do you have any examples of this sexless evolution?

    And note that asexual reproduction is a form of sex.

  122. 160

    It’s the anti-Prometheus case.

    It’s a law of nature that seeds will propagate and make more seeds.

    Monsanto has said: just apply it. Magic patent rights ensue.

  123. 159

    In most cases when you sell something and wish to retain some future reversion, the sale must explicitly call that out.

    It appears that the SC is rewriting (patent) law again so as to make the future reversion automatic.

    Thank you for buying my patented seed. I now own the fruits of your labor.

  124. 157

    Like:

    “Practical mathematics made easy.”

    (Oh wait, when someone does the accounting they are using natural laws. Oh wait, after being humiliated and shamed for making that argument, the anti’s now say it is abstract.)

  125. 156

    Technically, there isn’t any reason why soybeans themselves can’t commit an act of infringement

    Technically, the patent laws apply to people and not soybeans.

    I think when you start making comments like the one I quoted you should take a deep breath and reconsider your position.

  126. 155

    I understand the “birds and the bees,” anon. I also know that evolution doesn’t require sex.

    Maybe you can explain what you meant by “sex including self replication”? What the heck does that mean? Or are you playing Humpty Dumpty again and just making stuff up?

  127. 154

    Witness also Breyer bringing up “bicycle pedals’ in oral argumetn in Quanta when the patented subject matter was computer components.

    Oh my goodness!

    [clutches pearls]

  128. 152

    How about:

    He can plant the grain-elevator seeds, he can use RR to weed those plants, but he is not allowed to harvest those seeds.

    But he can sell the pods as edamame, since they aren’t seeds according to Monsanto’s counsel. Or maybe selling the pea shoots as salad greens.

  129. 151

    Thanks Hans.

    I just read the transcript, and it does appear the Supreme Court gets it.

    Walters made the point several times that owner of an article is free of the patent and that he therefor has a right to plant it, or sell it or whatever because he has a right to practice the invention in the article he owns. He did make the point that the whole theory of infringment depends upon conditions running with the sold article that would withdraw from the owner the right to use his property free from the patent. Both Waxman and Arbus Sherry appeared to understand that the conditional sales doctrine of the Federal Circuit was a problem. Both urged the case be decided without looking to that doctrine. But they have a problem. They really cannot then provide a rational basis as to why the planting of commodity seed by itself is not an infringement. That is what the Federal Circuit held.

  130. 150

    IANAE, so you are justifying the result in this case because of the peculiarities of this plant where with most other plants, the result may not be justifiable.

    Imagine farmers growing crop, saving seed and replaninting. This has been done since the discovery of agriculture.

    One farmer plants a patented variety. Soon, the patented gene naturally spreads to all fields because of wind and insects.

    It cannot be that every fricken farmer is now an infringer.

  131. 149

    Anon, I think the majority does see that if Monsanto sells the particular seed, or authorizes its sale, there is exhaustion to the extent that the buyer may plant that particular seed.

    “CHIEF JUSTICE ROBERTS: Well, but I mean, this — the reason it’s never is because this is an entirely different case. It’s the reason it’s here, because you have the intersection of the Exhaustion Doctrine and the — the normal protection of reinvented articles. So I don’t think it gets you very far to say that we’ve never applied the Exhaustion Doctrine that way either. We have never applied the reinvention doctrine to articles that reinvent themselves like plant seed.”

    Roberts thus sees the problem as involving only the seeds of the plants that grow from the seed that one has a right to plant in the first place.

  132. 147

    The ability of you to “make it so” is quite limited to the tinfoil hat that you must be wearing along with the Jean Luc Picard uniform as you sit in the makshift captain’s deck in your mother’s basement.

    And even that ability is strictly limited to your imagination.

  133. 146

    Without more, no.

    Unless the “use” allowed includes make, according to the artificially and highly constrained argument here (an argument that Bowman’s counsel should have been prepared for), the seed you bought from Monsanto could only be used for pig feed or tofu.

    The rediculousness of this should have been self evident, as neither of those uses have anything to do with the actual invention in the case.

  134. 145

    selectable pre-dates the Round-Up patent by many years.

    Actually, the “Round-Up patent” was the original patent on the chemical – itself long since expired.

  135. 144

    Ned, in response to your question, let me just say that I have significant problems with the proposition that Bowman is an infringer. My opinion that he will lose is not because I think he should lose. It will be a pure policy-driven decision, and not based on actual law. The actual law, in my opinion, is that Bowman is not an infringer. One of the things that drives me crazy about this case is that there is technology that can render the seeds sterile. Monsanto pledged to not incorporate this technology into its commercial seeds, but only because of PR reasons. So by Monsanto prevailing here, it gets to have its cake and eat it too. Monsanto gets everything the terminator technology would have given it, but without the adverse PR. As I said before, there are a million and one things that have to go right in order for a seed to become a plant, and only one of them involves throwing the seed onto the ground. I trust my post will put to rest any notion that Malcolm and I are the same person.

  136. 143

    I guess I should mention that no, Kagan is not an ignorami, because she is posing the question for a legitimate purpose which is not the same context for which you are attempting to use it. “pretty much everyone” aka “pretty much all soybean farmers” are infringers at this point precisely because they chose to be, voluntarily. They can just as well choose not to be, and still grow soybeans. They choose to be because it will make them $$$ they hope (although in reality it probably just lowered the price per bushel and they don’t make much more than before since everyone is doing it and it all comes out a wash since demand doesn’t magically go up just because supply does. But that’s what we call “competition” in this great country).

    I have no more time to waste on you lester jester, womenz await and they are much more important.

  137. 142

    I understand it quite well. And the question is not whether or not the patent does, now, in practical effect preempt all soybean planting because the patent, by its own claims, can plainly not do so. I can in fact go into my back yard, and, if I so choose to, plant a non-GMO seed and grow a non-GMO soybean. Farmer Bowman has, in fact, planted a non-infringing crop this very year. Was that crop prevented by the patent claims? No? Then there goes your whole construct ya ta rd.

    The fact that producers are not producing much non-GMO soybean because there is not enough demand for such is not an issue with the patent or its claims . It was not ever drafted to preempt all soybean planting, nor will it ever do so. Benson’s claims however WERE drated to preempt all use of the algorithm. On purpose and with feeling. Just as Mayo’s claims were drafted to prevent all practical use of the correlation.

    Second of all, although this will blow your t ard mind, even if the claim did so preempt as you dream that it does, preempting the planting of soybeans is not preempting something abstract or preempting a lawl of nature or a natural phenom.

    Like I said, defending patent eligible claims from this type of tar dation is tar dedly easy.

  138. 141

    Night,

    Give me a straight answer.

    There is no contract in this hypo.

    Assume planting is infringement per the Federal Circuit.

    Monsanto sells you patented seeds. Can you plant them without infringement?

  139. 140

    anon II,

    A farmer buys seed from Monsanto. No contract is involved in this hypo so as to not mix contract issues with patent issues.

    The farmer plants the seeds he purchased.

    Is he an infringer. And if not, why not?

  140. 139

    For once, NWPA, the Chief Justice showed rare insight on a fundamental patent law question. I don’t think even Breyer, if he wants to, can salvage the argument made by Walter for Bowman.

  141. 138

    Accepted by the public? Is there a law again terminator genes?

    Larry, I think there is a fundamental flaw in patenting sexually reproduced plants and animals. When they are exposes to the wild, they spread into nature, making us all infringers. That, to me, is a problem of the fundamental kind that needs to be addressed.

  142. 137

    And with Seth Waxman arguing for Monsanto, Walter likely didn’t have a chance to score points for Bowman with SCOTUS. Even Scalia saw through the fallacies in Walter’s argument.

  143. 136

    anon, this is nothing new for Breyer to be “off-color” in his comments on patent law issues. Witness KSR International where he talked about “raccoon inventions” at oral argument when the patented subject matter was a gas pedal control. Witness also Breyer bringing up “bicycle pedals’ in oral argumetn in Quanta when the patented subject matter was computer components. This particular justice “has no shame.”

  144. 135

    IANAE, a booze maker polutes the lake with his booze. What gives him the right to sue everyone who drinks lake water for infringement?

    A clever proprietor serves lake water in the local tavern, diverting business from Booze Maker. Is this materially different?

  145. 132

    LOL – that’s even better – as it makes my points even stronger.

    You really do love those Calvinball spikes in the face, don’t you IANAE?

  146. 131

    And just why is it that we should rely in the good will of Monsanto to not sue everyone?

    It’s more than just their good will, it’s the obvious fact that there’s no business case in suing “everyone”, and their own lawyer’s admission before the Supreme Court that even if they wanted to (which they don’t), they wouldn’t be entitled to any damages.

    Bowman is hardly “everyone”, he’s exactly the infringer you’d expect any patentee to sue. He had acres full of infringing product that he deliberately created over a period of several years specifically to select for and take advantage of the novel feature.

    A broadcaster puts his signal into the airwaves. Can he sue people who listen?

    No, but he can sue people who make copies.

  147. 130

    I find it morally offensive that Monsanto can so pollute the environment that ordinary farmers cannot farm at all without infringing.

    And just why is it that we should rely in the good will of Monsanto to not sue everyone?

    Think.

    A broadcaster puts his signal into the airwaves. Can he sue people who listen? Does it make any difference if the ordinary devices folks have always used and have a right to use will receive the broadcasts? Does turning the dial to the frequency of the broadcast justify a royalty? After all, the persons listening or watchin is getting a benefit he did not pay for.

    Can one send his book to another and say to him that if you read it you owe me the purchase price?

    There is something fundamentally wrong and alien about Monsanto’s business.

  148. 128

    What part of “in practical effect” don’t you understand?

    “Justice Kagan: Mr. Waxman, there is a worrisome thing on the other side …
    And, you know, these Roundup seeds are everywhere, it seems to me. There’s, what, 90 percent of all the seeds that are around? So it seems as though — like pretty much everybody is an infringer at this point, aren’t they?

    I guess Supreme Court Justice Kagan is an “ignorami” too.

  149. 127

    Yeah I knew when he published, but I didn’t realize that there were a lot of others that really picked up on the work in the later part of the 18th century. Indeed, I didn’t realize that there were more than even 2 or 3 that picked up on it until like, if I would have guessed, it would have picked up in the 20’s or 30’s. But they really got on the ball it seems.

  150. 125

    “wholly preempt the soy bean and in practical effect would be a patent on the soybean farming itself”

    You can rewrite it all you want, but your inaptly doing so is not going to change reality or what was held, why it was so held, or what would be held in the instant case. None of the claims in the instant case patent soybean farming itself. Period. And nobody has even tried to say otherwise other than ignorami like yourself.

  151. 124

    If you prefer anon, I’ll say that it is a synonym for you not agreeing with the world view imposed by the USSC and the federal government over which its pronouncements hold sway. Although it is also true that this happens to be my world view, which as it happens was the same world view of the USSC precisely because I made it so.

  152. 123

    you are going to be accused of speaking English as a second language.

    Another strawman. Nobody is accusing you of speaking English at all.

  153. 122

    use those seeds in a way that practices the invention embodied within

    Careful Anon II – or you are going to be accused of speaking English as a second language.

  154. 121

    I think, when planting, a combine acts as a KIND of shift register, with the beans taking the place of the bits. :-p …and there’s prolly a bean counter too.

  155. 119

    You were responding to a comment that I didn’t make

    Happens all the time (in the best “Flo” tones).

  156. 118

    I’m growing soybeans in my backyard. I don’t have a license. I don’t infringe.

    Don’t be so sure of that.

  157. 114

    If you have a (non-vacuous) point to make, please do so.

    Thanks,

    Your empty tr011ing is neither fun, nor funny.

  158. 113

    To my knowledge, he was only accused of direct infringement. You were responding to a comment that I didn’t make about indirect infringement. “Knowing what will happen is not the same as actually doing it” with respect to direct infringement. That is why I didn’t understand the point of your “anti-cancer pill” analogy. I guess your point is that he would still be liable for indirect infringement. The fact that “knowing” requires a different infringement theory than “doing” is how you can tell that they are different. To make that point, no analogy was necessary.

    My point about the policy issue is that it is a completely separate issue. As a realist, I know that the Supreme court will take into account policy considerations, but that doesn’t change it to a legal consideration.

  159. 112

    There is something troubling with counting on lawlessness as a barometer of what law is.

    That sounds in the canard of “what when”, in the guise of implying an anti-patent stance.

    /auto-anon responder off

  160. 111

    Moocow The fiction in this and other cases (e.g. Myriad) is that there are these patents, which give their owners “the right” to supposedly suppress all sorts of harmless and innocent activities, and OMG we must find ways to invalidate or render them all unenforceable.

    … there’s nothing troubling about the fact that someone technically happens to be an infringer. What would be troubling is if patentees were actually trying to enforce their patents in such situations. By and large, they don’t. Most patent owners I know are rational

    I do recall defenders of the Prometheus claims occasionally raising similar “arguments” as to why nobody should be concerned about [oldstep]+[newthought] claims.

    As a friendy reminder, I’ll note that corporations (and individuals, including individuals within corporations) tend to do all sorts of things that appear to be “irrational” under certain circumstances: (1) when they are despearate for cash; (2) when they perceive an existential threat; (3) or when they feel that they have been insulted or ignored.

    The reference to Myriad is especially odd in this context. Myriad’s composition claims have some serious problems with their scope but those problems do not even come close to the problems that plagued Myriad’s (now ineligible) method claims which were certainly actively “made available for licensing” by Myriad and presented to many entities who merely wanted to provide people with information relevant to breast cancer diagnosis. It’s not a question of living in “paralyzing fear” but a question of: if we allow this to be protected with a patent, what the heck is next? That is something worth being afraid of, at least prior to Prometheus. I guarantee you, had Prometheus come out the other way, we’d be seeing Congressional action to undo it because there literally would be nothing under the sun that couldn’t be very very easily protected by a patent, including “new” information itself.

    In Monsanto, the bridge seems to have been crossed a long, long time ago. Patented plants have been available for a long time. They are purchased. The plants duplicate themselves under the care of their new owners and they are “divided” by their new owners (i.e., asexually reproduced – an act of infringement). The reason most of those owners aren’t sued is because the infringement is de minimis and there’s no money to be made by the patentee in enforcement. But everything changes when the rights granted are broad enough to copy even de minimis “accidental” infringement by deep pocketed entities. Look at those ridiculous copyright suits that were brought recently based on IDS submissions of electronic files.

  161. 110

    Apparently not “practically”. If some other way were practical, something less than 90% of soybean would be roundup ready. The practical effect of Monsanto’s patent is a patent on the soybean farming itself.

    Therefore, ala Benson; Monsanto’s claims are abstract.

  162. 109

    Why is this so open and shut? If you read the transcript, it seems like Scalia picked up on the nuanced difference between grain-elevator seeds and the progeny of grain-elevator seeds. Grain-elevator seeds are sold in not one but two sales authorized by Monsanto. So how can Monsanto say it hasn’t sold the right to use those seeds in a way that practices the invention embodied within? I will buy that Monsanto can prevent farmers from replanting third-generation seeds, but not the second-generation grain-elevator seeds that Bowman purchased in authorized and unrestricted sales. If the Justices (or their clerks) pick up on that nuance, we could see a remand to determine how much of the progeny of grain-elevator seed Bowman kept over the years. Because the only way he infringed in that scenario is by planting the progeny of grain-elevator seed. Not by planting the grain-elevator seed in the first place.

  163. 108

    I think this is a case of figuring out how to adapt patent law for a new technology. Bowman should lose and it is policy based adjusting of patent law to accommodate a new technology.

    Too bad, the SCOTUS hasn’t figured that out for information processing. But, then I guess they can understand a seed and that somehow something in there (probably angels) has been changed to make the new seed.

  164. 107

    We have quite a lot of that here, courtesy of the little circle.

    The great thing about US patent law is that it can be changed by the careful presentation of well-reasoned arguments.

    In contrast, you can complain about natural selection until you’re blue in the face. Natural selection doesn’t care.

  165. 106

    I’m with Malcolm here. The notion that Bowman’s argument was plainly frivolous is absurd. He’s going to lose, of course, but you have to admit that something doesn’t completely smell right about the case. Had Bowman put the seed in his pocket, he’s in the clear, but if he throws it on the ground and it turns into a plant, he’s an infringer. The facts of this particular case make clear that Bowman was not the innocent he claimed to be. He clearly knew what he was doing. Fine. But is everyone like Bowman? The amount of things that have to occur (e.g., cellular processes) for a soybean seed to turn into a soybean plant are vast, and almost all of them are completely outside Bowman’s control. This is not an indirect infringement case. I like Ned’s reference to Pierson v. Post. Ownership of a wild fox merely by chasing it?

  166. 103

    also taught that they “don’t have to believe it if they don’t want to”

    We have quite a lot of that here, courtesy of the little circle.

  167. 102

    There is something troubling with counting on lawlessness as a barometer of what law is.

    Deeply troubling.

  168. 101

    I can tell that many of the people that comment aren’t farmers. That is to be expected. However when they comment on Ag issues or on genetics, they may think they are correct when they aren’t. The RR trait is carried into the next generation. Soybeans flowers have both male and female parts. That does not mean that they cannot be cross-pollenated by wind or insects. If Monsanto had introduced their terminator gene the point would be moot. That, however would not be readily accepted by the public.

  169. 100

    The only fundamental issue is the legal issue – all other issues are supporting issues and thus, by definition, not fundamental issues.

    HUMPTY HAS SPOKEN!

    We can all go home now.

  170. 99

    LB, that answer is both clever and correct. It’s worthwhile pointing out that none of us can get through a single day without infringing a bunch of patents (and other property rights). So Jason’s compost plant infringes? Big deal. Jason is much more likely to infringe a patent by using his smartphone anyway.
    Like any property rights system, the patent system only works because it relies on rational enforcement. Monsanto is not going to sue Jason because (i) it doesn’t care about the plant sprouting in his compost; (ii) suing wouldn’t be worth their time; (iii) there would be no meaningful damages or other remedy; (iv) Monsanto would never find out anyway.
    The fiction in this and other cases (e.g. Myriad) is that there are these patents, which give their owners “the right” to supposedly suppress all sorts of harmless and innocent activities, and OMG we must find ways to invalidate or render them all unenforceable. We heard it again in the Bowman oral arguments: “what if there’s seed that’s contaminated with only 2% of infringing seeds, and the farmer doesn’t know – wouldn’t he be an infringer, isn’t that troubling?” Actually, there’s nothing troubling about the fact that someone technically happens to be an infringer. What would be troubling is if patentees were actually trying to enforce their patents in such situations. By and large, they don’t. Most patent owners I know are rational; I wish I could say the same of those who live in paralyzing fear of patents.

  171. 97

    409 U.S. at 64, 93 S.Ct. 253. Since the claim would therefore “wholly preempt the mathematical formula and in practical effect would be a patent on the algorithm itself,””

    link to itlaw.wikia.com

    rewritten for the present case:

    –the claim would therefore “wholly preempt the soy bean and in practical effect would be a patent on the soybean farming itself–

  172. 96

    there was a rather large section on evolution, even back in the late 1800’s. I did not even know that the scientific roots of that science went back that far to such a large extent as was noted in this book.

    Darwin published “On the Origin of Species” in 1859, synthesizing various ideas that had been floating around earlier (his own ideas and those of others). The fundamental concepts of natural selection and evolution which he expressed in that book are, along with Mendelian genetics, the core concepts of modern biology.

    What’s “surprising” is that there are people running around today complaining about Darwin and objecting to kids being taught his “theories” in public schools unless those kids are also taught that they “don’t have to believe it if they don’t want to.”

    Great country we have here.

  173. 94

    Prof. Crouch had a guest post onthe long history of business methods in this country.

    Time to emply that archive feature…

  174. 93

    Evolution doesn’t require sex.

    broadly speaking, I don’t know if this even qualifies as a “Not even right” type of statement.

    (sex including self replication)

    “If there is no replication, there is no evolution” is not (logically) the same as “evolution doesn’t require sex.”

  175. 90

    hmmm,

    Lots of that “willfully do not understand” being bandied about as a synonym for “you don’t agree with my world-view.”

    More than a bit of a fallacious argument, and very detracting from the point of view that several really don’t know what’s going on – with law, with facts, with what is being said about the law and facts.

    Again: the most pernicious g@rb@ge on these boards is from those who spin and then [shrug] and stand by.

  176. 89

    “(“Knowing what will happen is not the same as actually doing it”) is false.”

    I’m still not seeing how you have shown this to be false.

    I described a situation were I am not directly infringing. I just know that infringement will occur if I “merely create the conditions” for infringement to occur. The law treats me as if I were actually infringing in that circumstance. Yes, someone else directly infringes. But that caveat isn’t in the statement of yours that I am addressing.

    My point is that there is a significant difference that could provide a basis to hold in favor of Bowman.

    I get that. But there are a lot of other facts that provide a basis to hold against Bowman.

    “If your premise is that a self-replicating composition does not infringe when it self-replicates, then self-replicating inventions are effectively not protectable by patents.”

    That is a policy issue that Congress is free to address, but we are talking about existing law.

    We’re talking about the Supreme Court interpreting existing law as it applies to something (e.g., whether the purchase of a self-replicating composition exhausts the patent with respect to progeny produced by self-replication) that isn’t explicitly addressed by the language of the statutes. The Supreme Court will always consider the policy implications of such decisions.

  177. 86

    LOL – but did it take a Flash of Genius?

    /eyeroll at the lack of appreciation of what “promote” fully means

  178. 85

    fundamental issue,

    The only fundamental issue is the legal issue – all other issues are supporting issues and thus, by definition, not fundamental issues.

    And one that could have been deftly handled – and refocused on the legal issue at hand, by better counsel.

    It may become apparent that it is not only “bad facts that make bad law,” as the saying goes, bad bad counsel.

  179. 83

    What you just said is some people donate their time and money to help others. I agree. So what?

    Well, that’s the easy answer to the question Roberts asked. That’s what.

    The patent system is about providing incentives (prizes) for innovating.

    Yes, that is what the patent system is about.

    If you can’t cash in, people aren’t going to invest.

    Well, I think most informed people understand the importance of funding basic scientific research. I do, anyway. And I don’t expect to “cash in.” I look forward to improvements in the quality of life and learning about things, generally, which flows naturally and indirectly from such investments.

    As for corporations and what they require before they engage in a particular activity, that also depends on the structure of the corporation and it’s by-laws. I’m sure Monsanto does a lot of stuff that earns them no money whatsoever but is done simply to show that it is a “good actor.” That said, they do owe a duty to their stockholders.

    With all due respect to Monsanto’s technology, it wasn’t in any way an invention that was “ahead of its time.” It or something like it was guaranteed to happen around that time. The basic idea of engineering organisms to be resistant and selectable pre-dates the Round-Up patent by many years.

  180. 82

    You know what was most interesting about it though NWPA? Other than the distinct lack of writing software being included in the useful arts, or even one business method having been included in their gigtantic list, the most amazing thing was that there was a rather large section on evolution, even back in the late 1800’s. I did not even know that the scientific roots of that science went back that far to such a large extent as was noted in this book.

    That was quite a surprise to me.

  181. 81

    Even factoring in the fact that he had a tremendous uphill battle in this case, I completely agree with you. I don’t think any attorney could have changed any justices’ minds on this case, but Walters’s performance was particularly cringeworthy.

  182. 80

    OK, MM. True enough. Some people try to help out. The point of the patent system is to put rocket engines on those efforts.

    What you just said is some people donate their time and money to help others. I agree. So what? The patent system is about providing incentives (prizes) for innovating. If you can’t cash in, people aren’t going to invest. Corporations, in fact, would either have to write it off as charity or it would be corporate waste and subject to a derivative law suit.

  183. 78

    (“Knowing what will happen is not the same as actually doing it”) is false.

    I’m still not seeing how you have shown this to be false. I agree that this may not be legally significant, but that is what the Supreme Court is deciding right now. My point is that there is a significant difference that could provide a basis to hold in favor of Bowman.

    If your premise is that a self-replicating composition does not infringe when it self-replicates, then self-replicating inventions are effectively not protectable by patents.

    That is a policy issue that Congress is free to address, but we are talking about existing law.

  184. 77

    If you put some seeds you buy at the store in your son’s salad, who actually hates veggies, and he doesn’t eat all of it, and you compost the uneaten food, now you just might have infringed on claim 122, since the compost might grow a plant.

    Yes, in which case Monsanto is entitled to a reasonable royalty. If they come asking for it, I suggest you settle.

  185. 75

    What are those great reasons? Other than the government funded me to.

    To grow a bigger crop. So more people have food to eat.

    Money is an important motivator in our society but it isn’t the only motivator. I realize that is sometimes a difficult proposition for people of certain political stripes to digest but it’s nevertheless true.

    People have been trying to make “improved” plants without being paid to do so and without patent incentives for a long time. And they’ve been extremely successful at it in many instances.

  186. 74

    I think we should not dispense with the exhaustion doctrine trivially given other aspects of our society. Here, for example, SCOTUS seems set to make composts illegal.

    Claim 122 reads, “A seed of the plant of claim 116, wherein the seed comprises the DNA sequence encoding an EPSPS enzyme having the sequence of SEQ ID NO: 70.”

    The lack of a restriction on the generation implies all progeny are protected. All seems good. Except California’s Prop 37 (allowing consumers to know if seeds are GMO) lost. Therefore, consumers have no idea whether or not they are required to follow Monsanto’s licensing agreements. If you put some seeds you buy at the store in your son’s salad, who actually hates veggies, and he doesn’t eat all of it, and you compost the uneaten food, now you just might have infringed on claim 122, since the compost might grow a plant.

  187. 71

    Interesting. I hadn’t thought about applying Akamai to this case, since infringement is usually performed by humans. Technically, there isn’t any reason why soybeans themselves can’t commit an act of infringement that was induced by Bowman. Bowman was certainly active.

    I still believe that “Knowing what will happen is not the same as actually doing it”, but I guess Bowman might still be liable under 271(b) in any case.

  188. 70

    OMG

    This experiment was carried out to evaluate the effect of the honeybee pollination in the production and quality of soybean seeds (Glycine max L. Merril). Seed production was higher (P=0.0001) in covered areas with honeybee colonies (50.64%) and uncovered areas (57.73%) than in covered areas without honeybee colonies. It could be concluded that honeybees were responsible for 95.5% of the pollination accomplished by insects. The pod number in covered treatment with honeybees was 61.38% higher (P=0.0002) than in the covered treatment without honeybees. The average weight of 100 seeds was larger (P=0.0001) in the area covered without honeybees, and reached 17.8 g. The medium content of crude protein in grains was 36.7% and the average oil content was 20.2%. The germination test did not show differences (P>0.05) among the seeds in different treatments. It was concluded that the honeybee pollination in the soybean increased the seeds production.

    link to scielo.br

  189. 69

    In fact, it is certainly, the best indication of whether or not innovation is being provided with incentives.

    CJ Roberts hit the nail squarely on the head. That is exactly the way to think about it.

  190. 68

    NSII The difference is that the person administering the drug would be an infringer in your hypothetical.

    I understood that difference. The point of my hypothetical was to show that your blanket assertion (“Knowing what will happen is not the same as actually doing it”) is false. Sometimes knowing what will happen (or even knowing that there is a likelihood that something will happen) is the same as “doing it” under the law.

    If your premise is that a self-replicating composition does not infringe when it self-replicates, then self-replicating inventions are effectively not protectable by patents.

  191. 65

    How is plugging in a memory device and telling the computer to do the actual act of copying not “merely creating the conditions that allow/encourage software to self-replicate”?

    The difference is “telling the computer to do the actual copying”. (1) The computer is doing the copying and not the software itself. (2) Telling the computer is an affirmative and necessary action.

    Engineering a situation where you know something will happen is the same as actually doing it.

    The difference is that you still have to do it. To my knowledge software doesn’t copy itself without being instructed to do so. You can’t tell a soybean what to do.

  192. 64

    The soybean cannot be an infringer, thus you cannot induce a soybean to infringe a patent.

    Inducement doesn’t require an infringer, only an infringement.

  193. 63

    it may be time to break up Monsanto into so many baby-‘Santos.

    How would splitting up the company address the “problem” that a single patented feature of a single product has become exceedingly popular in its market?

  194. 61

    The difference is that the person administering the drug would be an infringer in your hypothetical. The soybean cannot be an infringer, thus you cannot induce a soybean to infringe a patent.

  195. 60

    farmers have no other genuine recourse to avoid infringement

    Non-GMO soybeans. Check the organic foods aisle of your supermarket (emphasis on the “market”).

  196. 59

    It may be easy to copy software, but copying software still requires an affirmative act of replication. Planting soybeans is not the same because planting soybeans is merely creating the conditions that allow/encourage soybeans to self-replicate.

    How is plugging in a memory device and telling the computer to do the actual act of copying not “merely creating the conditions that allow/encourage software to self-replicate”? The “affirmative act of replication” is the same – putting the original in a place where a man-made environment produces a copy by processes that the copier doesn’t fully understand, no matter how long he’s worked in that field.

    Knowing what will happen is not the same as actually doing it.

    Engineering a situation where you know something will happen is the same as actually doing it. It’s certainly not different enough to get a variance from the Supreme Court on policy grounds.

  197. 58

    Knowing what will happen is not the same as actually doing it.

    Hmm. I’m pretty sure there are examples of the opposite position being taken by courts in the patent context. If I sell you a pill labeled “anti-cancer pill”, I don’t know that you are going to administer it to yourself in a method for curing cancer. Haven’t I merely “creating the conditions that allow/encourage” infringement to happen? I believe I’d still be liable for infringement in that circumstance.

  198. 55

    Patent exhaustion appears to be a losing argument here, but given the difficulty for a farmer to obtain noninfringing public domain seed to plant (Bowman apparently has found some over a hundred miles away in Ohio for this coming planting season), are there other legal arguments that would have been more fruitful? I’m thinking of, for example, “implied license” due to Monsanto’s apparent unwillingness or inability to contractually require seed elevators to keep their patented seed separate from the rest.

    If not, and farmers have no other genuine recourse to avoid infringement, then like Standard Oil or AT&T, it may be time to break up Monsanto into so many baby-‘Santos.

  199. 52

    Chief Justice Roberts: Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?

    I can think of great reasons that someone would spend money to improve the seed under those circumstances, but I can’t see any reason why someone would spend money trying to patent that improved seed (or any improved self-replicating composition) under those circumstances.

  200. 51

    Bowman’s counsel should have been prepared to distinguish software on the basis that software doesn’t self-replicate. It may be easy to copy software, but copying software still requires an affirmative act of replication. Planting soybeans is not the same because planting soybeans is merely creating the conditions that allow/encourage soybeans to self-replicate. However, it is the soybeans that actually do the copying. Knowing what will happen is not the same as actually doing it.

  201. 50

    I am missing the connection as to how arguments in this case affect the software/music industry. Anyone care to enlighten me?

  202. 49

    If the pollen didn’t fly in the wind or wasn’t carried by insects, the plants would have never evolved.

    Evolution doesn’t require sex.

  203. 48

    Right. As far as I’m concerned, once it was clear that Breyer and the other judges understood that “self-replicating” technologies are ubiquitous and all patents on such would be rendered suspect if they adopted Bowman’s exhaustion position, the matter is over. And that happened:

    JUSTICE BREYER (to Waxman): Well, is — I mean, that is an interesting question, because you can imagine — you see, this is — your answer — this really deals with all — it could be with genetic patents, with — with hosts of things which are self-replicating

  204. 46

    I guess soy bean plants produce nectar to attract bees because they are lonely or are just being generous then.

    Yes, and whales have pelvic bones because they enjoy long walks on the beach.

    Sounds like you’ve got an excellent argument against “intelligent design” of soybeans, just a pitifully weak one against their evolution.

  205. 44

    Not straight forward.

    The farmer saves seed and replants. He is an infringer if his crop includes the patented seed.

    As to damages, I think they will go on what a RR is in the market generally, not what based on the desires of he farmer. They confuse the law of RR.

    If Monsanto wins, they can prevent normal farming or collect royalties from everyone.

  206. 42

    Yes, an observation by Roberts, but a good one demonstrating an understanding of the fundamental issue presented by the case with respect to self-replication.

  207. 41

    “I agree it makes no sense. It is, however, in keeping with recent Supreme Court pronouncements in 101 cases.”

    Only if you willfully do not understand what was said in the recent 101 pronouncements.

  208. 40

    If it were true, soybeans would have never evolved.

    And you feel comfortable putting that statement out there, knowing full well that (1) it is, and (2) they have?

  209. 39

    Try to stay on point. There is a difference between naturally evolving plants and intelligent selective breeding. The assertion that soybean pollen doesn’t transfer from plant to plant is absurd. If it were true, soybeans would have never evolved.

  210. 37

    MM–

    We all know that the SC is a political organ wrapped in a legal sheath–but occasionally, a legal argument is so strong that it effectively forecloses any attempt to effect policy that it does not support.

    That is the case here. Any political discharge will be contained by the sheath, which will maintain its integrity.

  211. 36

    Does anybody even know if that progeny would be resistant to Roundup?

    Round-up targets an essential gene for plant growth. Resistance plants have modified genes that are insensitive to round-up. A plant with one sensisitve gene and one reistant gene is probably more resistant to Round-Up than a “native” soybean but less resistant than the double.

    I note that the RoundUp-resistant form of the gene was found in a naturally occurring bacterium, specifically Agrobacterium sp. strain CP4. I’m pretty sure that Monsanto had a patent on the isolated form of that gene. So the Supremes will have that fact on their mind when they hear Myriad’s arguments.

  212. 34

    Don’t you think there are detrimental effects to inbreeding?

    The nation’s soybean population seems to be thriving.

    Farmers love inbreeding. Makes for a consistent crop. Just like in the arguments quoted above that you clearly still haven’t read.

    The trick is to find specimens with all the traits you want, and then inbreed those. Rather than, say, whoever happens to live in the same tiny community or believe in the same deity.

  213. 31

    “The issue” is Bowman’s egregiously unlawful conduct.

    I have no love for Monsanto, as I have expressed on this board concerning McFarling, Schmeiser, and other cases–but Monsanto is nobody’s fool.

  214. 29

    Don’t you think Monsanto’s claims are abstract? The preempt all soy bean farming don’t they?

    If you think you are making a compelling point, you’re wrong. You’re wrong on the law and, more importantly, you’re wrong on the facts.

    I’m growing soybeans in my backyard. I don’t have a license. I don’t infringe. Neither do the many thousands of other growers of organic non-GMO soybeans. There is no pre-emption of soy bean farming.

  215. 28

    It could come out 9-0, but I think there is some disbelief that infringement would actually reach those generations or that there is no exhaustion as it relates to an unconditioned sale of seeds for their historical purpose (e.g., planting).

    Bowman’s lawyers were not good. I don’t think he was asked particularly difficult questions and they were questions that should have been well rehearsed by this point, but he still managed to fumble them. He got asked the most important question out of the gate and, in my opinion, failed to take the bull by the horns.

  216. 27

    If the pollen didn’t fly in the wind or wasn’t carried by insects,

    It doesn’t and it isn’t. Not soybean pollen, anyway. Soybeans are self-pollinating. Says so right at the top of this page. The same flower has male parts and female parts.

    In any event, cross-pollinated plants would only be heterozygous in the Roundup-Ready trait. Does anybody even know if that progeny would be resistant to Roundup?

    the plants would have never evolved.

    Don’t you think there’s some evolutionary benefit to not having to depend on the weather or insects for reproduction?

  217. 26

    It’s possible that Bowman was banking on being able to successfully characterize himself as a poor little farmer trying to slay the giant GMO-engineering corporation Monsanto.

    The ACLU is working a similar angle in Myriad, albeit with completely different legal issues and claims that are more plainly problematic.

  218. 25

    Don’t you think Monsanto’s claims are abstract? The preempt all soy bean farming don’t they? They are already at 90%. Therefore, they fail 101. Bowman wins, hands down.

  219. 24

    The issue is pollen, not beans. Aaacho. If the pollen didn’t fly in the wind or wasn’t carried by insects, the plants would have never evolved.

  220. 23

    Ned: Beans may not fly in the wind, but most seeds do. Patent law cannot be shaped solely because of the peculiarities of this plant.

    I think the SC will address the issue of ubiquity.

    I think you’ve got your answer:

    Breyer: some of the self-replicating items, which are infringing items, end up inadvertently all over the place. Is there anything — is there precautions that you take? I mean, is there anything in patent law that helps?

    Waxman: a thing doesn’t infringe; a person infringes.

    Justice Breyer: But you’re just saying that would need a modification in patent law.

    Modification comin’ up!

    Also, as Waxman points out:

    he point that there may be many farmers with respect to other crops like alfalfa that may have some inadvertent Roundup Ready alfalfa in their fields may be true, although it’s — it is not well documented. There would be inadvertent infringement if the farmer was cultivating a patented crop, but there would be no enforcement of that.

    The farmer wouldn’t know, Monsanto wouldn’t know, and in any event, the damages would be zero because you would ask what the reasonable royalty would be, and if the farmer doesn’t want Roundup Ready technology and isn’t using Roundup Ready technology to save costs and increase productivity, the — the royalty value would be zero. …

    Pretty straightforward stuff.

  221. 22

    many of them seemed to believe that Bowman would make a better showing than he did, because he had a good, arguable case.

    Bowman has just enough of a case that you can convince yourself he might win if you’re desperate to believe it. Or, I suppose I should say, “if you’re desperate to believe such”.

  222. 21

    Bowman’s counsel didn’t blow it.

    Bowman has a losing case. Bowman is a willful infringer.

    Much of the court’s questioning has as its underpinning exactly those arguments I made on Oct 9-11, 2012, on this Patently-O thread:

    link to patentlyo.com

    This oral was no surprise at all–but I must say that it has not been only posters on this board who have gone off in all sorts of inopportune directions. I have discussed this with many people I actually know are patent attorneys, and many of them seemed to believe that Bowman would make a better showing than he did, because he had a good, arguable case.

    If I was trying to win exposure by using a SC case as a vehicle for pro bono, it wouldn’t have been this case, for 2 reasons:

    1) the case, itself, was a loser from the outset; and

    2) more importantly, IMO Bowman isn’t anywhere near as deserving of pro bono representation as are millions of other potential pro bono recipients. Given a limited amount of time to devote to pro bono, Bowman would have been at the very bottom of my list.

    Next.

  223. 20

    the whole separation of make unfettered to use, when the gist of the patent is tied explicitly to that use, would have been a comeback that would have shut down the Supreme’s line of argument

    Bowman’s counsel should have repeated that “gist of the patent” business over and over and when the Justices asked questions about the implications of the holding, counsel could pretend not to hear or understand them and, if necessary, accusing them of “QQ-ing” and being “anti-patent”. That’s a very effective strategy.

    at least we know that the clerks of the Supreme Court read Patently-O, so all is not yet lost

    I’m with Dennis here. You got this one wrong, anon.

  224. 18

    Beans may not fly in the wind, but most seeds do. Patent law cannot be shaped solely because of the peculiarities of this plant.

    I think the SC will address the issue of ubiquity.

  225. 17

    Waxman -“But size — that is, success — has never been thought and can’t be thought to affect the contour of patent rights.”

    Mr. Waxman must not be familiar with Benson or Bilski.

  226. 16

    I bought a book on the witch hunts of medieval Europe. And, the logic employed by the Catholic church is about the same as Lemley and Stern employ on information processing methods.

  227. 14

    As I said – Bowman’s counsel blew it – the whole separation of make unfettered to use, when the gist of the patent is tied explicitly to that use, would have been a comeback that would have shut down the Supreme’s line of argument.

    Well, at least we know that the clerks of the Supreme Court read Patently-O, so all is not yet lost.

  228. 13

    “In Benson, the claim was for a method of converting binary-coded decimal numerals into pure binary numerals that was “not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use.” 409 U.S. at 64, 93 S.Ct. 253. Since the claim would therefore “wholly preempt the mathematical formula and in practical effect would be a patent on the algorithm itself,””

    link to itlaw.wikia.com

    rewritten for the present case:

    –the claim would therefore “wholly preempt the soy bean and in practical effect would be a patent on the soybean farming itself–

  229. 12

    Justice Breyer was on fire! From the NY Times:

    Justice Stephen G. Breyer said that there were lots of things Mr. Bowman could do with the seeds he had bought from the grain elevator.

    “You can feed it to animals, you can feed it to your family, make tofu turkeys,” he said.

    “But I’ll give you two that you can’t do,” he went on. “One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”

  230. 11

    Not to mention applied math with natural laws.

    I think before bed I will make up several natural laws by write some code.

  231. 10

    I agree Les. Try applying the same nonsense they spouted in the recent CLS Bank oral arguments.

    (*) Come up with other ways someone could make your bean that does not infringe your patent.

    (*) You are claiming all ways of making the bean.

    (*) Your claims are abstract. All those words you are using have no definite meaning.

  232. 8

    The claims are abstract because they preclude and entire industry.

    Not knowing whether you are serious or not, that is pretty much the Benson holding. Of course, the error in the argument (and the Benson holding) is that it confuses breadth with an abstract idea.

  233. 7

    I agree it makes no sense. It is, however, in keeping with recent Supreme Court pronouncements in 101 cases.

  234. 5

    So, Monsanto’s Patents are invalid under 101.

    “Mr. Waxman: …Your point about the ubiquity of Roundup Ready’s use is a fair one. I mean, this is probably the most rapidly adopted technological advance in history. The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States. ”

    The claims are abstract because they preclude and entire industry.

  235. 3

    I think the below says it all:

    Chief Justice Roberts: Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?

  236. 1

    It was around this point that Justice Breyer gave his best one-liner of the day, declaring that “three generations of seeds is enough.” (see Buck v. Bell).

    Wow. I’m not sure that’s funny. But I suppose he couldn’t come up with a good quip from Korematsu v. U.S., or Dred Scott v. Sandford.

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