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. 378

    This is a very good comment!!!!

    It is just like these wank_ers who are telling us that a machine that performs the job of a human being is not eligible for patentability because it is a law of nature (wait, scratch that. We humiliated the fi_lth so that now they say it is abstract.)

    They don’t even know what the Church-Turing Thesis nor understand that we are trained to pick a level of abstraction and work at that level and then walk up and down the abstraction ladder.

  2. 377

    You are mistaken, but that’s OK, because I expect the supremes to be mistaken too. What we are really talking about with all this blathering is the legitimacy of the conditional sales doctrine and whether Quanta eliminated it once and for all. I think it did. I am not alone. Dr. Holman agrees with me.

  3. 376

    “But you might want to have a word with AI, who thinks all claims are business methods.”

    Don’t know about you but I file patents for artistic reasons and my own personal and spiritual growth. Business? Ha! Next they will claim the USPTO is under the department of commerce!

  4. 375

    Hans–

    It’s impossible to take you seriously, when you don’t take the question seriously.

    What you posted is rubbish, in view of the fact that I provided above, that the claims include molecules and plant cells.

    See asserted patent RE39,247E

    Unless I am mistaken, you appear to be yet another waste of time on this board–and if I am mistaken, you have my apologies, although I won’t bother to consider your response to this post.

  5. 374

    In other words, you are blindly following what you think you understand.

    You do not even realize just how clueless you are.

    But please, continue to take pride in that.

  6. 373

    You’re taking what I said around backwards ta rd, I’m not saying I made the USSC do something, I’m saying that I made my world view what it is because of them having adopted it first. In other words, they imposed the world view on me, and I forced my world view to be what theirs was.

    Doing just what I did is what has stubbornly eluded you.

  7. 372

    anon: “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.”

    Yes, MM now runs from the very link he was the first to post. Hey Malcolm, how about applying the Courts “Integration” to any real claims using the official USPTO Guidelines?

    link to uspto.gov

    Go ahead show us how “brilliant” you really are.

    ::Sound of MM’s skirt flapping in the wind::

  8. 370

    in view of valid points of law and fact that have been established.

    That’s called conversation when you integrate into the discussion validly made points – when you don’t, when you choose to ignore them because you find them boring, or because they don’t fit your agenda, or whatever, that’s called getting on your soapbox and merely regurgitating the same old c_rrp.

    Where are all the QQers wanting true conversation?

    Thank you little circle for proving my points on what is truly low quality blogging.

    Now if we actually set our sights on fixing that actual problem…

    C’est la vie.

  9. 369

    Ned,

    Your credibility bottoms out with a comment like that.

    Sort of when you thought 6 was like Einstein merely because he agreed with your point of view.

    It’s one thing to have an opinion. It’s quite another to misrepresent law and fact in furtherance of that “opinion” and it is still quite another to be so self delusional as to deny your opponent their rightfully earned views.

    Rather than the n_aked statement, SHOW 101 Integration Expert the error in how he his applying integration.

    You will not because you cannot.

    I recall that you too have chosen NOT to take up 101 Integration Expert’s claim integration challenge – just as you also FAILED to take up the challenge of the Grand Hall Great Race challenge between a computer without software and a computer configured with software.

    Having an opinion is all well and fine – but when that opinion wilts in the face of reason, of facts and of law, owning up to what the results show and a willingness to critically (and honestly) examine that opinion takes something called integrity. Being bull-headed and ignoring everything about you, closing your eyes, sticking your fingers in your ears and chanting la-la-la-la as loud as you can to preserve your ‘opinion’ merely requires being obstinate.

  10. 368

    Encryption that only calls for transforming numbers? — there is a problem.

    Ned, you obviously do not understand the art of encryption.

    The art is ONLY transforming – all else is extra-solution processing.

  11. 367

    And I would wish that posters posting in intellectual honesty would correctly state the law as it is without trying to spin to fit a certain agenda.

    But the battle is “bigger” than that, and intellectual honesty is a casualty as to some, the ends justify whatever means.

  12. 366

    Canard ALERT.

    No one is talking about claims that can be performed COMPLETELY in the mind.

    This point has only been made like a dozen times.

    Two is an abstraction” is merely kicking up dust.

  13. 365

    Ned: “…. you don’t have any idea what integration is.”

    101 Integration Expert: Ned to further enlighten you as to exactly what “integration” is please read the following and learn it .

    Using the Courts line of 101 cases as the lens thru which to determine when claims are “integrated” it is apparent that a new and useful process claim in general has a clear presumption of “Integration” and the presumption remains valid, and requires no further analysis under 101 unless the claims as a whole recite;

    1. A bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or

    The first element of the claim is a bare Court created judicial exception (derived implicitly from the Congressional Statute of 101) followed by additional steps or claims that apply the judicial exception. In the case of the latter, analysis for extra-solution activity, (pre or post ) occurs to determine if the claims are integrated or instead pre-empt the judicial exception.

    There is no MoT requirement of any kind with or without integration.

    There is no PoN/analysis of any kind.

    There is no ignoring steps ( dissection) of any kind in the concluding analysis.

    You take the claims as a whole ( Integrated) and that’s the law.

    Now if you have any questions please let me know.

    I am glad to help.

  14. 364

    “But what people (many otherwise intelligent people) forget is that Benson has been cabined, and by itself is no longer good law. You cannot read Benson in a vacuum. That is clear legal error.”

    Excellent point to remind us all of anon. I can’t recall who it was but a judge in the Alice oral arguments confronted an attorney on the legality of Benson and he totally backed down. I just wish once some attorney with some guts and a command of the law would say what you just stated!

  15. 363

    101 Integration Expert: The ONLY requirement on “integration” from Prometheus is that the claims are “considered as a whole” in the concluding analysis. If I am wrong provide the exact quote from the case that says otherwise.

    Ned: “101, I think the basic problem hears is that you don’t have any idea what integration is.”

    101 Integration Expert: Ned, I know exactly what “Integration” is. I am the one that introduced “Integration Analysis” to the blog remember?

    And I am here telling you that there is no requirement that a process be “integrated” into a machine or transformation to be patent eligible subject matter.

    That is why you replied with a personal attack on my credibility rather than an exact quote from the Court.

    You have no quote.

    You have no cite.

    You have no evidence for your view whatsoever.

    Again, See Justice Breyer writing:

    ( In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps
    transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Now, in the same controlling case law from Diehr the Court writes:

    ““([u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.”) [Diehr, supra, at 182.]

    When one checks the dictionary definition for the ordinary, contemporary, common meaning of “integrated” it says:

    “in·te·grat·ed [in-ti-grey-tid] Show IPA adjective:

    1.combining or coordinating separate elements so as to provide a harmonious, interrelated whole:

    Now you can pretend ( as usual) that you didn’t read it to avoid being defeated. But the facts and the law won’t change.

  16. 362

    anon, when we discuss law and policy here, we are free, I think, to express our opinions. We do not have to agree at all with court decisions. We can disagree.

  17. 361

    "Can be performed" is a canard?

    What it this Anon? A claim that does not require a machine or something physical is wholly mental.

    1 + 1 = 2.

    Two is an abstraction.

  18. 360

    101, that is the policy reason why patents cannot be granted on LoN, etc. in the abstract — they literally cover all applications. Thus, the laws require

    they be applied to produce a new machine, article, process or composition.

  19. 359

    I expect intellectual honesty as a BASELINE for anyone discussing law Ned.

    Do you really think that that is too much to expect?

  20. 358

    Canard ALERT.

    No one is talking about claims that can be performed COMPLETELY in the mind.

    This point has only been made like a dozen times.

  21. 357

    No Ned, it’s foreclosure of the future use of a LoN/Natural Phenomena or abstract idea that makes a new and useful series of steps/acts an exception to patent eligible subject matter. This is repeated in all the Court case law right up to prometheus. Why can’t you accept this well established point of law?

  22. 356

    I’d have to look up the transcript, but I’m sure Schmeiser didn’t spray his crop with glyphosate. He however, may have used it as a burndown before planting or shortly before harvest. Schmeiser did in fact sue Monsanto shortly after for contaminating his fields and won.

  23. 354

    6, I think that comment about job security just about says it all.

    I think the same problem may affect anyone prosecuting software cases, business method cases, medical diagnosis cases, or gene cases where their jobs substantially depend upon maintaining the status quo.

  24. 353

    Anon, it is interesting how you do not see a difference between John Q Public expressing his opinion and a federal circuit court judge who has a duty to follow the law in the administration of justice.

  25. 352

    101, close.

    I might add that the criteria or clue also advanced by the SC is that the clue to eligiblity was physicality. Thus, a series of mental steps is not eligible even if it is useful.

  26. 351

    There is an amazing lack of “conversation” going on here from the likes of Malcolm and Ned Heller in view of valid points of law and fact that have been established.

    Why, pray tell, could that be?

    Is there a Lone Ranger marathon on TV?

  27. 350

    You are aware that the actual issue here is patent exhaustion, that is, when 35 USC 271 has been exhausted, right?

    I’m aware that the case is about exhaustion, yes. That’s not what Hans and I were discussing in this particular sub-thread. But you go right on ahead. What is it that you wanted to say?

  28. 349

    101 Integration Expert said in reply to Ned Heller…

    No Court has ever concluded an “integrated-MOT test” exist, let alone a requirement to pass such a thing. You are simply making stuff up.

    Reply Feb 22, 2013 at 02:55 PM
    Ned Heller said in reply to 101 Integration Expert…

    I’m sorry, 101. But with the Mayo clarification of Diehr, I think they did make that very clear.

    Reply Feb 22, 2013 at 03:10 PM

    Ned Heller said in reply to 101 Integration Expert…

    101, as we know, it is not whether the old claim elements pass the MOT, but whether the novel, ineligible elements are integrated. Mayo made this clear.

    101 Integration Expert:

    Ned your reasoning is rot with contradiction. In one post your argue there is a requirement to “integrates’ in the MoT” and then in the next post you flip and argue passing the MoT does not mater but that elements being “integrated” meet certain conditions of novelty and eligibility.

    WOW!

    It literally looks like you are making this stuff up as you go from post to post.

    Ned, nothing you have said above is concluded by Prometheus.

    NOTHING.

    The ONLY requirement on “integration” from Prometheus is that the claims are “considered as a whole” in the concluding analysis.

    If I am wrong provide the exact quote from the case that says otherwise.

  29. 348

    Benson remains law – no doubt.

    But what people (many otherwise intelligent people) forget is that Benson has been cabined, and by itself is no longer good law.

    You cannot read Benson in a vacuum. That is clear legal error.

  30. 347

    That’s not all that different than a factory machine that makes patented widgets.

    Except for the fact that it is completely different, I might agree with you.

    “Making” is covered by 35 USC 271. Nice strawman. No one is arguing otherwise.

    You are aware that the actual issue here is patent exhaustion, that is, when 35 USC 271 has been exhausted, right?

  31. 346

    No, the examiner simply wasn’t familiar with a. the law, or b. his duty to apply it. I have a similar individual in my office. They exist. I have slowly brought him into some understanding, but he protests that his whole art unit would disappear and he wouldn’t have $$$. I told him there were other things to examine.

  32. 345

    I don’t view mental steps, LON, Facts, or Natural Phenomena to be “exceptions.”

    How many Supreme Court cases are you mutinying against Ned?

    Is this the same Ned that blasts Rader?

    Ned – we don’t you answer my accusations of your mutinies?

    Cat got your tongue? Wheels fall off the Ned-Make-Up-Law Wagon?

    Do you not realize how completely embarassing this must be for you?

  33. 344

    Les,

    For some reason Ned does not understand what the statutory categories of 101 are.

    He thinks they are : machine, manufacture, composition of matter, or process of making a machine, manufacture, or composition of matter.

    (I chalk up the errant view on process as related to the “Justice Story and English Patent Law did not cover process patents” bias.)

  34. 343

    Ned “101, I don’t view mental steps, LON, Facts, or Natural Phenomena to be “exceptions.” They are not listed among the things that can be patented.”

    Well, if any of the examples in your list can be reduced to a a new and useful series of steps/acts then they are processes and can be patented as such according to the statute. Of course this is not taking into account the requirement for overcoming the judicial exception.

  35. 342

    “I disagree. The above steps are neither a law of nature nor an abstract idea.”

    Of course you are right, quite factually correct. But the Court said they are abstract ideas, I believe it was in Benson?

    It drives me crazy every time I listen to an oral argument and some judge challenges an attorney by saying, So Benson was wrong then?

    And the attorney just wilts and back peddles and says , no, no, your honor Benson was not wrong.

    Just once I would like to hear an attorney stand up to the court and says he ll yes Benson was wrong and the sheet needs to be overturned. Maybe that will be you Les, or NWPA.

    BTW, if you Les, NWPA, anon, Just saying, E.G., want to be on a pro bono dream team to challenge the Supreme Court on Benson just let me know and I will send a case right up!

    Until that happens Benson is going to remain the law. D u m b law but the law no less.

  36. 341

    Les, really?

    Really?

    REALLY?

    And yet even the PTO agrees that a series of mental steps is not a process. I wonder, then, about the competence of the examiner.

  37. 337

    101, as we know, it is not whether the old claim elements pass the MOT, but whether the novel, ineligible elements are integrated. Mayo made this clear.

  38. 336

    Claim 13 was allowed because it apparently recites a novel, non-obvious, process and processes are a category of patentable inventions. In fact, processes are the first of the listed categories in 35 USC 101.

  39. 334

    No Court has ever concluded an “integrated-MOT test” exist, let alone a requirement to pass such a thing. You are simply making stuff up.

  40. 333

    Les is correct according to the statute a process is a process and therefore patent eligible subject matter.

    The Supreme Court only declared LoN/Natural Phenomenon, and Abstract ideas to be exceptions.

    Software programs, business methods and the like are not included in the exceptions. So, I can get patents for those.

    And I can even get patents on LoN/Natural Phenomenon, and Abstract ideas if they are processes, and don’t foreclose others from inventing altogether different processes for those exceptions.

    That’s the law Ned.

  41. 332

    Ned: 101, “into” a process that passed the MOT… You need to reread Diehr.”

    Thanks Ned. I did reread Diehr as you suggested and claim 11 failed the MoT, as that test was defined by the PTO from the CAFC in Bilski. Yet as we all know claim 11 in patent eligible subject matter.

    So your assertion that Diehr requires claims pass the MoT to be patent eligible subject matter is incorrect.

    I also reread Mayo v Prometheus and there was no requirement that claims must be “integrated” into a process that pass the MoT, as you suggested.

    In fact Prometheus take on Diehr did not include any MoT requirement at all. Only “integration” was explicitly referred to.

    So your interpretation for “integration” is incorrect as well.

    See my references below and let me know if you have any questions. I am glad to help.

    Prometheus Integration:

    In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Diehr claim 11:

    “(a) heating said mold to a temperature range approximating a predetermined rubber curing temperature,”
    “(b) installing prepared unmolded synthetic rubber of a known compound in a molding cavity of predetermined geometry as defined by said mold,”
    “(c) closing said press to mold said rubber to occupy said cavity in conformance with the contour of said mold and to cure said rubber by transfer of heat thereto from said mold,”
    “(d) initiating an interval timer upon the closure of said press for monitoring the elapsed time of said closure,”
    “(e) heating said mold during said closure to maintain the temperature thereof within said range approximating said rubber curing temperature,”
    “(f) constantly determining the temperature of said mold at a location closely adjacent said cavity thereof throughout closure of said press,”
    “(g) repetitively calculating at frequent periodic intervals throughout closure of said press the Arrhenius equation for reaction time of said rubber to determine total required cure time v as follows:”
    “ln v = cz + x”
    “wherein c is an activation energy constant determined for said rubber being molded and cured in said press, z is the temperature of said mold at the time of each calculation of said Arrhenius equation, and x is a constant which is a function of said predetermined geometry of said mold,”
    “(h) for each repetition of calculation of said Arrhenius equation herein, comparing the resultant calculated total required cure time with the monitored elapsed time measured by said interval timer,”
    “(i) opening said press when a said comparison of calculated total required cure time and monitored elapsed time indicates equivalence, and”
    “(j) removing from said mold the resultant precision molded and cured rubber article.”

  42. 331

    Uh, OK. Then what are we talking about?

    Look at what I said, Hans. I said that the plant “makes” seeds, patented seeds in this instance. That’s not all that different than a factory machine that makes patented widgets. If the plant makes those patented seeds as the result of purposeful actions taken by a farmer, then the farmer is “making” those seeds, under any reasonable interpretation. “Making” is covered by 35 USC 271.

    I’m not freaked out at all by the prospect of Bowman winning. But I disagree that it upsets settled expectations. The baseline is 35 USC 271, and its application to the agriculture industry doesn’t seem any less straightforward to me than its application to other industries.

    There are an almost infinite number of things that have to go right in order for a seed to germinate, and Bowman is responsible for one or two of them, and this makes him liable as a “makes” infringer?

    Uh, yes. There are a large number of things that have to go right in order for a semiconductor fab to turn out a patented integrated circuit, too, and the company running the fab is directly responsible for only some of them. But guess who’s liable for those ICs that meet the terms of the claim?

  43. 330

    Diehr is the only case that found the claims before it eligible

    Ned – meaningless dust kicking.

    Bilski was explicit about MoT – why are you now prevaricating about that?

    It’s mutiny – plain and simple.

  44. 329

    Monsanto should have ignored the negative PR and incorporated the terminator technology into its seeds.

    The fact that they did not and still sold the first gen implicates that they knew they were selling an invention that covered multiple generations (thus dragging “make” into “use,” and more specifically, into what was actually sold.

    Yet another thing that Bowman’s attorney should be flayed for missing.

    Let’s hope the Supreme Court clerks don’t miss this evident fact.

  45. 328

    because it’s relatively easy to make the argument, if you only have one stray infringing plant in your field, that you haven’t committed an act of infringement.

    After just getting done saying the exact opposite.

    This is the type of c_rrp that needs to be expunged.

  46. 327

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

    Uh, OK. Then what are we talking about?

    I understand that the notion of Bowman winning freaks out people on this board. But, as far as I can tell, only because it upsets settled expectations. There are an almost infinite number of things that have to go right in order for a seed to germinate, and Bowman is responsible for one or two of them, and this makes him liable as a “makes” infringer? Wow! Settled expectations? It wasn’t THAT long ago that you saw ads promoting the healthful aspects of smoking cigarettes. How can Bowman infringe if the seed germinates, but not infringe if the seed does not germinate? Monsanto should have ignored the negative PR and incorporated the terminator technology into its seeds.

  47. 326

    anon, Diehr is the only case that found the claims before it eligible. A old process that they said passed the MOT was modified by the programmed computer to produce an improved result. They found it eligible.

    Bilski did not disapprove of Diehr. It simply said that the Diehr test was not exclusive.

    Mayo made the point that the LON was tagged on to old data gathering steps. These old steps were NOT modified as in Diehr.

    What do we conclude?

    Diehr still points the way. It is simply not the only test, meaning that a claim that did not pass the integrated-MOT test might still be eligible. But, since we have no examples, we don't know what such a test might be.

  48. 325

    why are you diverting attention to damages issues. The issue is infringement.

    For several reasons.

    Firstly, because even if someone does infringe based on a single plant, you and I both know that he’s not getting sued because there’s no money in it.

    Secondly, because it’s relatively easy to make the argument, if you only have one stray infringing plant in your field, that you haven’t committed an act of infringement. Yes, there is an infringing plant, but if it blew in from the next farm over and you had no idea till Monsanto told you, you’re not liable as an infringer. I know you don’t seem to understand why, but I’ve explained it several times and I’m not going into it again.

    Thirdly, because if you only have one Roundup-Ready plant in your field, even if you did know it was there, you’d never spray Roundup to find out because it would destroy your entire crop. So nobody would even be aware of the infringement and you’d never get sued in the first place.

    Fourth, there’s always de minimis non curat lex.

    In other words, that fact scenario is not a problem in the real world. What is a problem is people like Schmeiser and Bowman deliberately selecting for infringing seed and planting it on acres of farmland. We in the patent business call that “copying”, and it’s a form of willful infringement.

    Schmeiser discovered this, but even so continued to save seed and replant. He however, did not use RR.

    What he admitted at trial is that he deliberately selected for and saved Roundup-Ready seed. Pretty sure the evidence showed his whole field was full of nothing but. I find it hard to believe he was that intent on preserving his own meticulously cultivated breed, if he decided to wipe out his seed crop of it with herbicide.

    Monsanto got no damages because Schmeiser had received no benefit from the infringement.

    Because they asked for his profits, and he had no incremental profits. Had they asked for a reasonable royalty, they’d probably have gotten it.

    But Schmeiser was damaged beyond repair.

    Maybe that’ll teach him to spray a known herbicide on the plants he intends to use for seed. You’d think a farmer would know better.

  49. 324

    anon, encryption applied to physical signals transforms physical signals. I see no 101 problem there.

    Encryption that only calls for transforming numbers? — there is a problem.

    I don't understand why you can't see that there is a difference, albeit minor, that really counts for 101 purposes.

  50. 322

    Les, not all algorithms are abstract? Agreed.

    I know the claims, including claim 13, were patented.

    I don't know why, as claim 13 does appear to have 101 problems on its face. Perhaps the examiner was disctracted by the obviously eligible claims?

  51. 321

    IANAE, why are you diverting attention to damages issues. The issue is infringement.

    Moreover, what happened to Schmeiser is an example. Schmeiser saved seed and replanted, year in and year out. Over a 50 year period, by carefully selecting seed with favorable properties, he had developed an unique variety no one else had.

    His fields were then contaminated with the Monsanto patented genes. Schmeiser discovered this, but even so continued to save seed and replant. He however, did not use RR.

    Monsanto got no damages because Schmeiser had received no benefit from the infringement.

    But because of the contamination, he could no longer save seed and replant. This meant he lost his plant variety that he had spent 50 years cultivating.

    Monsanto was harmed in no way by Schmeiser's infringement. Still they sued and won. But Schmeiser was damaged beyond repair.

    How can such a trav esty be justified on any grounds?

  52. 320

    passed the MOT

    And you Ned, need to reread Bilksi.

    And please stop your mutinying against what the Supreme Court has explicitly told you.

  53. 318

    all mental in that sense,

    Fallacy ALERT.

    Not everything not associated with physical hardware is necessarily mental.

    revisit encryption technology (sigh – again)

    Ned – you are still mutinying against what the Supreme Court has explicitly provided you:

    Bilski: MoT not necessary
    Prometheus: MoT not suffcicient.

    Please stop your errors.

  54. 316

    Again, the issue being addressed is whether all algorithms are abstract. They are not.

    As to patentability, if you follow the link you’ll see that it was patented, so…

  55. 315

    If a field has one plant, it infringes.

    If a field contains one infringing plant, there is an infringement. Obviously. Who would ever suggest otherwise?

    But a farmer with one infringing plant on 100 acres of cultivated land does not have the same liability as a farmer with 100 acres of infringing plants.

    Suppose you have a patent on some bicycle part. You find a company that sells millions of bicycles a year, and they’ve sold seven that infringe your patent, with no intention to ever sell any more. Would you even bother suing them? If you did, would you expect to collect on every bicycle they’ve ever sold?

    And that’s not even considering that if a farmer has a field full of mostly non-Roundup-Ready crop, he’d be a fool to spray it full of Roundup, so he’d never even know the infringing plant was there, and neither would Monsanto.

  56. 313

    Les, I looked, but could not find anything that clearly linked the claim to any physical hardware. That algorithm, claim 13, was a series of steps devoid of any hardware — they were all mental in that sense.

    A series of mental steps does not define a patentable process.

    To the extent we are talking at all why some algorithms are eligible and others not, it seems clear to me that the claim must be ineluctably tied to the physical so as to define a new machine, or a new process.

  57. 312

    “there is no other test anyone has come up with to date.”

    Sure there is. Its called 35 USC 101.

    Is it a process? Yes. Tada, hurdle passed.

  58. 310

    IANAE, you should accept the theory being advanced to the SC. For one, no one has made any argument that there is a threshold to pass before there is infringement. If a field has one plant, it infringes.

  59. 308

    Hi Ned –
    That wasn’t really the point. I was responding to the assertion that all algorithms are abstract.

    But if you’d like an example that doesn’t involve hardware:

    13. A method of improving signal to noise ratio (SNR) in a fixed point fast Fourier transform (FFT/IFFT) for conducting a frequency analysis of a signal, the method comprising:

    generating from sample inputs and a twiddle factor butterfly outputs for each stage;

    scaling the butterfly outputs of this stage from a predicted normalization scale factor to obtain the maximum butterfly output without overflow from this stage;

    determining from the butterfly outputs of this stage the minimum normalizing exponent for the butterfly outputs of this stage; and

    predicting a normalization scale factor of the next stage from said minimum normalizing exponent of this stage and a stage guard scale value to obtain the maximum butterfly output without overflow from that next stage.

    link to google.com

  60. 307

    “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.”

    I disagree. The above steps are neither a law of nature nor an abstract idea.

    Those steps are a process and processes are therefore within a category of things that are potentially patentable.

    However, those steps lack novelty. They represent homework problem 7 on Mrs. Jorgenssons first grade homework mimeographed homework sheet 17. There maybe earlier examples, but the Examiner found that one and it predates your application by several decades.

  61. 306

    “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.”

    But the logic is flawed. In the very same way every patent retards the progress in the area covered by the claims. But progress is promoted in 1) that the principle is disclosed and others may use it when the patent expires or immediately if they are willing and able to pay a reasonable royalty and 2) in that others are encouraged to discover other principles.

  62. 303

    He used no GMO seed for planting canola and used no Roundup to spray on his canola.

    He admitted at trial that he sprayed Roundup and saved the surviving seed for replanting.

    And Monsanto did actually win their case against him.

  63. 302

    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.

    Whether “the whole field” is infringing is a question of fact.

    You might as well say that if a company makes a thousand products and you read your claim on one of them, “the whole company” is infringing.

    Now, suppose Monsanto tested a bunch of plants randomly chosen from all over the defendant’s land, and can demonstrate that exactly one of them infringes. What do you suppose the court will do? For bonus marks, don’t you think Monsanto can find better people than that to sue?

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