Posts Tagged: "Monsanto"

By claiming mutual and unilateral mistake, DuPont had placed the truthfulness of its subjective belief concerning its stacking rights at issue… The problem for DuPont was that the internal e-mails showed that in-house attorneys advised DuPont executives that the company did not have the right to commercialize the stacked product “[b]ecause of the field of use limitation” contained within the Licensing agreement. Upon learning that DuPont had been advised that they had no right to stack, Monsanto moved for sanctions, asking the district court to rule that DuPont had misrepresented its subjective belief concerning stacking rights and had perpetrated a fraud on the court.

In order to fabricate a case or controversy where clearly none existed, the farmers — AFTER filing the declaratory judgment action — sent Monsanto a letter, which asked Monsanto to expressly waive any claim for patent infringement they may ever have against the farmers and memorialize that waiver by providing a written covenant not to sue. The farmers explained that without such a covenant, they would at risk. With such a disingenuous attempt to fabricate declaratory judgment jurisdiction you really need to ask yourself exactly who the evil party is here! To ask for such a ridiculously broad covenant not to sue was nothing more than grandstanding. Thus, Monsanto understandably refused to provide a blanket covenant not to sue for any and all actions both known and unknown that maybe undertaken by the farmers.

Flying under the AMP v. Myriad radar recently was Federal Circuit’s Organic Seed Growers v. Monsanto. In Organic Seed Growers, the Federal Circuit denied declaratory relief to a band of more than 60 farmers, seed vendors, and agricultural organizations from California to Florida (and even Canada) seeking to invalidate 23 of Monsanto’s patents relating to various technologies for genetically modified seeds. The band of agriculturists grows, uses, or sells conventional seeds that do not incorporate Monsanto’s technologies. Many have organic certifications, and generally eschew transgenic seeds and glyphosate-based herbicides such as Monsanto’s Roundup® herbicide.

n the case of Bowman v. Monsanto Co., Farmer Bowman may have believed that the “third time” would be “charm.” In two prior cases, Monsanto Co. v. Scruggs[1] and Monsanto Co. v. McFarling,[2] the Federal Circuit had ruled in favor of Monsanto, the owner of the patented Roundup Ready® soybeans, and against Farmer Scruggs and Farmer McFarling. Even so, Farmer Bowman, as probably did his legal counsel, may have believed that the Supreme Court’s 2008 decision in Quanta Computer, Inc. v. LG Electronics, Inc.[3] would undermine the Federal Circuit’s view that patent exhaustion didn’t apply to Monsanto’s patented Roundup Ready® soybeans. But in a unanimous decision, the Supreme Court affirmed the Federal Circuit’s 2011 ruling[4] that Farmer Bowman’s unlicensed planting of these patented Roundup Ready® soybeans (sold for commodity use only) was an infringing use that was not subject to the doctrine of patent exhaustion. Alas, Farmer Bowman found no solace in Quanta.

Some had hoped that the Court would use Bowman as an opportunity to address the extent of a patent owner’s monopoly over other self-replicating technologies in the areas of biotechnology and information technology, such as human cell lines or computer programs. Certainly, the Court hinted at the possibility of situations where the patented article’s self-replication is truly outside the purchaser’s control, or where the self-replication is an essential step in using the patented article for another authorized purpose. The Court, however, cautiously declined to extend its holding in Bowman to those situations. The decision in Monsanto is intended to be fact-specific and carry slight ramification. Indeed, the Court’s unanimous decision ended with a significant caveat that the holding is limited, “addressing the situation before [the Court], rather than every one involving a self-replicating product.”

While one can never know for certain how the Supreme Court will rule, even a casual observer has to conclude that the Supreme Court seems poised rule in favor of Monsanto. Seconds after Bowman’s attorney started Chief Justice Roberts interrupted asking why anyone would ever patent anything if Bowman were to prevail. Shortly thereafter Justice Breyer openly concluded that Bowman infringed in a matter of fact way. It later may have seemed Breyer was probing for a response he didn’t get more so than announcing his view of the case. Nevertheless, if Bowman loses Breyer he has no chance.

In its amicus brief, CLI responds by arguing that the term “makes,” as used in Section 271(a), has its plain and ordinary meaning, which embraces the concepts of “bringing about” or “causing.” CLI contends that Bowman, through his acts of planting and cultivating, brought about and caused the formation of a next-generation of herbicide-resistant soybeans. Alternatively, CLI argues that, even if the concept of a “making” only literally reaches the acts of the herbicide-resistant soybean plants Bowman cultivated, Bowman would still be liable for those acts under principles of agency-instrumentality law. Based on his acts of planting and cultivating, CLI asserts that Bowman exercised sufficient control over the herbicide-resistant soybean plants he raised that they should be treated as mere instrumentalities of his, the conduct of which can and should be attributed to him.

Bowman v Monsanto involves a farmer who figured out how to get Monsanto’s patented seeds cheaper from a grain elevator than from the company. I won’t attempt to delve into the intricacies of the litigation or the doctrine of patent exhaustion, but do want to consider a larger point. What happens if our innovators lose confidence in the patent system? Some apparently believe this is a desirable outcome

Prior user rights also implicate free rider problems with respect to a subsequent patent that an inventor obtains covering the subject matter of the secret prior user. At the point of publication the prior user no longer maintains a trade secret. At the point of issuance, the patentee and the prior user relatively co-exist with each other in the market. The patentee excludes others from the market except for the prior user. The prior user then enjoys the benefits and advantages associated with the patentee excluding others from operating in the market, while being free from liability to the patentee. In this regard, the prior user enjoys the period of time operating the technology in secret in addition to 20 years of excluding others provided by the competitor.