Guest Post: Monsanto Company’s View on Patent Reform – Protect Innovation:

David Snively is Monsanto's General Counsel. He read Google's calls for patent reform and penned the following response. Monsanto's business model relies heavily on its ability to protect its innovations through intellectual property and contract in the US and Globally. Monsanto has also been the defendant in numerous patent battles.

Dr. Alan Greenpan's keynote speech on "Markets and the Judiciary" noted that "critical to economic growth is a rule of law, particularly protection of the rights of individuals and property". His remark that for IP law, the constancy of the protection afforded under the Constitution of the United States and our fully-functioning legal system is the basis for the U.S. economy's sustaining lead – even in difficult economic times with broken markets. Our patent system is the envy of the globe and while capable of thoughtful adjustment should not be hijacked by international pirates or corporations seeking to dilute legitimate protection that breeds investment and jobs. This is why Monsanto Company, as a global leader for innovation and technology in agriculture, is joined by trade unions and countless other groups who strive to assure Greenspan's voice is not lost in the din from hedge funds, offshore interests or others seeking short term gain by weakening our great patent system.

I respectfully disagree with the recent blog post by Google's Head of Patents and General Counsel, commenting on the perceived risks from damage awards in patent cases. Monsanto has faced billion dollar damage claims as a wrongly sued patent defendant and also knows the true benefits from avoiding the encouragement of willful infringement based on a smaller party's calculated gain in the face of limited risk of a meaningful award of damages if infringement is established. With full knowledge of all these issues and our substantial alignment with Google and the information technology industry over the legitimate need to curtail patent trolls and a myriad of other concerns - we encourage thoughtful reform. Last year Congress passed without public objection Public Law 110-403 the "Prioritizing Resources and Organization for Intellectual Property Act of 2008" which was designed to significantly enhance government law enforcement resources for combating certain kinds of intellectual property (IP) theft, e.g. criminal counterfeiting and infringement of computer software. The law helps protect investments in the research, development and marketing of certain kinds of innovative American products and services. The information technology industry was rightly bothered that its intellectual property rights were being trampled on by "pirates".

But, according to the financial sector and the information technology industry it seems that too many other people have too many patents that get in the way of too much "innovation" that is being marketed by an industry that doesn't own the rights to the "innovation". Some say that innovation can't stand still while somebody does a patent search to make sure that the "innovation" that is being marketed won't infringe any of those too many patents. So the complaint is "we are getting sued too much by these innovators who are stifling our innovation". Unlike the solution for rampant copyright infringement the perverse solution for rampant patent infringement is to propose "reforms" that would both reduce incentive to invest in research, development and marketing of innovative American products and services and provided impediments for improving patent quality. Dr. Greenspan's Georgetown keynote aptly recalled the copyright situation when he quoted Stephen Breyer from the Harvard Law Review decades prior to becoming a Justice "the case for copyright…rests not upon the proven need, but rather upon the uncertainty as to what would happen if protection were removed. One may suspect the risk of harm is small, but the world without copyright is nonetheless [in the words of Hamlet] 'undiscover'd country' which 'puzzles the will,/And makes us rather bear those ills we have/Than fly to others that we know not of.'

The problems posed by the patent reform bill are many:

• It would change the calculation of damages that an infringer (pirate) would pay as compensation for trampling on patent rights, encouraging only more callous disregard of patent rights and piracy.
• It would change the venue provisions in a way that would impose a substantial burden and inconvenience on patent owners by limiting access to the judicial system, encouraging only more callous disregard of patent rights and piracy.
• "Technical" changes would weaken protection and encourage piracy via removing the estoppels provisions and expanding the prior art basis for engaging in inter partes re-examination, in effect providing a system of post grant review that will serve only to harass patent owners by effectively taking patents out or service for the duration of unlimited re-examinations, encouraging only more callous disregard of patent rights and piracy.

Transparency is critical to society today yet the patent reform bill would not require publication of all patent applications at 18 months reducing the public knowledge of prior art making it harder to avoid investment in patent-free technology and reducing the likelihood that quality patents will issue.

Thoughtful patent reform is needed. There are things to support in the House version of the patent reform bill. For example, the House bill while strangely modifying the damages calculation would authorize a study to see if such a modification is needed. Such studies are available and do not support the anecdotes that say damage awards are out of control.

Patent Reform that discourages investment in research and development and the job growth and economic stimulus that is spawned by thousands of small companies as well as large companies that rely on a robust and strong patent system is bad for America. Monsanto invests over $2M every day in research and is committed publicly to helping double food yield in corn, soy and cotton by 2030 while using 1/3 fewer natural resources and improving the lives of farmers globally. Accomplishing this task of sustainable agriculture requires a patent system and rule of law that Dr. Greenspan says has always been found in the Constitution of the United States.

Comments

[TJ]

Well, the post kind of blithly assumes that all infringers are pirates. Is that simply by definition? (i.e. defining piracy as infringement as opposed to actual copying) Or is the argument that almost all patent infringement involves copying? If it is the latter, I have grave doubts about its empirical truth.

[Arnold]

I want to hear a response from this guy:

http://www.foley.com/people/bio.aspx?employeeid=29496&&practiceID=&industryID=&genPageID=&serviceID=

[suchsweethtunder]

I can't speak in regards to Mr. Snively's comments on patent reform. But I find the comments on copyright peculiar:

-- Alan Greenpan isn't particularly popular right now.

-- The PRO-IP was essentially gutted in the Senate, due to strong public objection.

-- Breyer has commented that he intended his dissent in Eldred v. Ashcroft to be a firecracker that would inspire grassroots opposition to overreaching copyright laws.

[Sphinx]

Arnold - you already have:

http://www.foley.com/publications/pub_detail.aspx?pubid=5789

[alsma]

PROIP Act passed "without public objection"? What planet is he on? If you ignore it, it isn't really there?

[blah blah]

yep, Piracy is infringement in the article above... for those patent attorneys that do not know how use simile or metaphor (or analogies).

I think the article has merit and the damages provision will be hotly debated for the concern flagged in the article... that patents will be weakened (if damages are modified simply to modify them) and that effects all patent attorneys and tech corps significantly...

[SF]

The posts from the Google and Monsanto individuals demonstrate why meaningful patent reform will not occur. Anything that weakens patents will worry companies like Monsanto that want strong patents. Anything that strengthens patents will worry companies like Google that want weak patents. Companies in both categories will torpedo each other's attempts to swing the pendulum in their favor.

Perhaps the only "reforms" that large companies will be able to agree on are ones that screw over the little guy to benefit them.

[Malcolm Mooney]

Here's a better quote from Greenspan, of much relevance to this blog:

"Innovation has brought about a multitude of new products, such as subprime loans and niche credit programs for immigrants. Such developments are representative of the market responses that have driven the financial services industry throughout the history of our country … With these advances in technology, lenders have taken advantage of credit-scoring models and other techniques for efficiently extending credit to a broader spectrum of consumers. … Where once more-marginal applicants would simply have been denied credit, lenders are now able to quite efficiently judge the risk posed by individual applicants and to price that risk appropriately. These improvements have led to rapid growth in subprime mortgage lending; indeed, today subprime mortgages account for roughly 10 percent of the number of all mortgages outstanding, up from just 1 or 2 percent in the early 1990s."

Business methods, peeps!!! Aren't they awesome? If only we had more innovation in this area, then America would be so much more wonderful. Wonderful, wonderful, wonderful!!!

[Malcolm Mooney]

SF: "Companies in both categories will torpedo each other's attempts to swing the pendulum in their favor."

Maybe.

But rest assured that the public is more interested in Google succeeding than Monsanto.

By a long shot. So if Google can lobby up, Google wins. Monsanto's advantage is that it's been playing the game longer so it's tentacles are embedded deeply and firmly inside multitudes of desirable dark corridors in establishment DC.

[bsn]

I know I shouldn't bite but, Mr Snively lost me at "Our patent system is the envy of the globe ."

Really. That's why no one - NO ONE - else has implemented a patent system close to the US one.

[titaniumtroop]

Monsanto is heavily invested in the current patent system, and it plays the patent game more aggressively than probably any other biotech company. I expect these kinds of comments from the scourge of farmers everywhere.

[Malcolm Mooney]

"Accomplishing this task of sustainable agriculture requires a patent system"

Really?

/people who farmed sustainably for thousands of years before patents

[GPope]

Here's a comment I never thought I'd make:

Monsanto is rapidly becoming a threat to the world's stable food supply.

If there's any company that stands as the poster child of the dangers of patents, it's Monsanto.

[Malcolm Mooney]

"Monsanto invests over $2M every day in research and is committed publicly to helping double food yield in corn, soy and cotton by 2030"

Thereby avoiding the dreaded Cotton Famine.

[Palpolm Gooney]

Mr. Mooney, Mr. Titaniumtroop, Mr. GPope, please explain.

If Monsanto is evil, why dont farmers invent own seeds instead of stealing Monsanto seeds?

Why dont farmers use proven agriculture of our ancestors instead of evil Monsanto way that poisons environment?

[Malcolm Mooney]

"why dont farmers invent own seeds"

Who said they don't?

[Cletus]

"Our patent system is the envy of the globe"

Haha, what a load of rubbish!!!

[Cletus]

"Our patent system is the envy of the globe"

Really? Who says?

[Just an ordinary inventor(TM)]

Wow, what a great rebuttal to the con-artist at google -- Thank you Mr. David Snively.

[Tyrone Slothrop]

I'm glad it wasn't only this humble Yoorpean who choked on "Our patent system is the envy of the globe"...

[me]

The bill is terrible, it must be defeated and the general thrust of his statement is right, although we can quibble with the drafting and approach.

[me]

Malcolm seems to miss that Monsanto product is on 80% of soybean fields and a majority of corn fields and has increased yield - Malcolm, yet again missing basic facts in his digs.

[Lonnie E. Holder]

Mr. Mooney:

Yes, farmers did farm sustainably for thousands of years before patents. However, that began changing as populations began swelling. Suddenly, not only were farmers not keeping up with population growth, but as much as 25% of the world (other estimates were much higher, depending on whose doom and gloom you focused) was faced with starvation. Suddenly, farmers were no longer farming sustainably.

Success yesterday is no guarantee of success tomorrow.

You get what you pay for.

There ain't no such thing as a free lunch. - Robert A. Heinlein

[me]

In fact, the green revolution and Borlaug's Nobel Prize showed how we need science. Traditional plant breeding, protected by UPOV and the Plant Patents (PPA and PVPA) are what has made India and Mexico food self sufficient. That traditional plant breeding has fed the world, and the patents that protect are primary to that innovation. Now, we need more as we have no more farmland, but a still growing population and changing climate.

Malcolm, you are wrong so often and so easy to refute, do you write for Limbaugh?

[Jon Cameron]

All the sniveling by the likes of Google fail to acknowledge the natural impact of society's growing body of knowledge.

Hey, it is more work to write a patent today than 20 years ago. There are more patents to source for prior art. Online commentators inadvertently eat through prior art at a staggering rate. To write a patent today requires a filing cabinet of research and claim charts that cover a wall.

The reality is true innovators are not hampered because there are more inventors. While we used to only have a couple of references, now we have to hold 100s of prior art resources in our mind's eye and find the holes.

The exercise is more difficult, the outcome is more profound.

I sympathize with Google and Monsanto's observations of the abuses by the bottom feeders leveraging the legal system to feed off other's innovation and success. As, I have learned you can be sued by anyone for unspecified actions (they will craft what we did wrong after discovery and $500k in legal).

So let's fix the courts. Change some filing rules. We all know where to start. However, we should never put innovation at the disadvantage by reducing the number of inventors.

[Ian]

I have to admire Mr. Snively for publishing his response to Michelle Lee's blog post. It takes courage to publish your response in the public domain when you quite clearly lack the language skills to construct, or indeed rebuff, a structured argument. I've hadn't read such nonsense in a long time.

[me]

Ian-

It is not well written, but Snively is right. Have you seen Chief Judge Michel's comments? He completely agrees with Monsanto, and not Google.

[Anonymous]

Monsanto and Google sell vastly different products, so (ideally) there is no reason for them to be arguing.

Damages calculations should take into consideration the nature of the patented product.

In the case of corn (Monsanto) profits are 100% attributable to IP. These markets are extremely competitive, so it is reasonable to assume that any margin above the going market rate for non-patented corn is due to IP.

In the case of network services (Google), profits are not 100% attributable to IP. The market for these services is not nearly as competitive - there are only a few real players. The success/failure of a product in this market is not only due to patentable innovation, but also depends on subscriber base (who was first to market), look and feel (copyright not patent), etc. So the % of profits in Google's industry are much more difficult to calculate.

[Just an ordinary inventor(TM)]

Dear Ian,

So, you prefer form to substance. I say this because your critical comment clearly lacks substance, but it is well written.

[Ian]

Hi,

I haven't see his comments. Do you have a link? Tks.

I.

[Ian]

-Just an ordinary inventor

Point taken. My post does lack substance and should perhaps point to examples in Mr. Snively's text to support my assertions. However, I think these examples are glaringly obvious.

[me]

Here is Michel sppech - it has some real zingers for Google. See last para.

http://www.patentsmatter.com/issue/20090128_michel_acpc.htm

Dennis - can we gat a full post on this speech?

[Ian]

-me

Thanks for the link. However, having now read both Michelle Lee's blog post and Chief Judge Michel's, I fail to see how you draw the above conclusion.

Ms. Lee makes the point that 18 out of 20 lawsuits filed against Google since late 2007 have been by non-practicing entities or “patent trolls.” As we both know these lawsuits are typically settled before they get anywhere near a court house.

As such, when Chief Judge Michel discusses his purported 2nd myth that companies face a recent explosion of infringement litigation.(see 9th paragraph), he's citing statistics which do not comprise the lawsuits that Ms. Lee is referring to. Intentional?

The only conclusion that can be drawn here is that Chief Judge Michel has made a sweeping statement to ACPC members omitting a sizeable chunk of the jigsaw.

[Just an ordinary inventor(TM)]

Dear I,

What’s glaringly obvious depends on one’s view of course.

My life’s creative achievements have been invested in a patent portfolio that has been adversely affected EX POST FACTO by eBay, KSR, Festo, past and proposed reform, etc., etc.

Along comes Mr. Michelle Lee years ago, Head of Patents and Patent Strategy at Google, a leading international patent pirate conspirator in the cartel called the Coalition for Patent Fairness, and this Lee asswhole slurs me and other inventors so situated by saying:

“Consider this: Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or “patent trolls.”

It’s the likes of this asswhole’s efforts and his international cohort pirates that the strong and productive “American patent system well has been poisoned” over the past several years.

I use to be proud to say I was an inventor. Now, the general population thinks regular inventors are bad guys.

And that really really pisses me off. I take great pride in my work.

Mr. Lee, I challenge you to a duel.
Something civilized,
say, how about a game of chess:
If you win, I’ll shut up –
If I win, you’ll recant your anti American patent system propaganda.

* * * * *

PS: I for one have manufactured and sold various and numerous products over the years under my own patents, and I have also licensed other patents of mine covering products that I haven’t manufactured.

[me]

Ian-

I could not disagree more strongly. Michel talks about 3,000 lawsuits and we are supposed to change the entire sytem because of Ms. Lee's 20? As Ms. Lee gets more sophisticated ahe will understand the need to keep the economy of the whole country going, and crushing manufacturing and innovation is not the way to do that. Ms. Lee will also learn to get sued more often, and smile about it.

[me]

Oh, and read Michel's last paragraph.

[bierbelly]

Didn't W.C. Fields use the appellation "Snively" once or twice?

[Just an ordinary inventor(TM)]

W.C.Fields also said:

If you can't dazzle them with brilliance, baffle them with bull.

[Ian]

Couple of points.

1. Michelle Lee is a he not a she.

2. The expression "asswhole" is not intended to refer to a person's whole ass. Drop the w

3. I can't follow your argumentation. How are your slurred if you are not a non practising entity?

I.

[me]

Ian-

Whether he or she, the point remains. Why change the entire patent system so 24 large electronics/software companies that produce few real goods themselves won't have to put up with a few slap suits? I mean, come on, how many tort suits do you think a Fortune 500 is in at any one time - 100's - and Google can't defend 20 patent suits - most of which will end at summary judgement, with their 100 billion market cap? Come on.

[Just an ordinary inventor(TM)]

I is right.

1. Soorry Ms. Lee. How about spin the bottle instead of chess?

2. I use the “w” to avoid being spam duncked – buttw your point is well taken.

3. I believe Ms. Lee casts her slur so broadly it would apply to me if I sued her for one of my patented inventions if I didn’t practice that invention.

[dweller]

Oh, boo hoo. Google gets sued too much. They're still doing fine. Perhaps they should spend some of their billions hiring a few more practitioners to deal with the patent landscape that frightens them so much.

And to all the knee-jurks whining about Monsanto, remember this: in 20 years a Monsanto seed becomes a public seed.

[Just an ordinary inventor(TM)]

You gotta' admire how IBM managed the patent landscape since the caveman days.

[Malcolm Mooney]

me: "Malcolm, you are wrong so often and so easy to refute"

Then refute me. In case you hadn't noticed, you haven't shown me where a single one of my statements above was wrong.

"has made India and Mexico food self sufficient. That traditional plant breeding has fed the world, and the patents that protect are primary to that innovation. Now, we need more as we have no more farmland, but a still growing population and changing climate."

I never said that we don't need plant patents or that Monsanto shouldn't stop patenting. Not sure what you're railing against.

Your user name is truly lame, by the way.

[me]

Well, my name may be weak, but it is copied often so people can really be sure it is "me".

[Just an ordinary inventor(TM)]

BTW, W.C.Fields also said:

"No doubt exists that all women are crazy; it's only a question of degree."

Now, who was it that said, if the shoe fits …

[me]

Oh, while we are hating on Google - I recommend www.ixquick.com for all your searches. It is the most private, you can even search under a secure connection so noone knows what you search.

Google does not do this, and saves your searches so they can use them in Google Trends and make more money, I guess.

[Lionel Hutz]

Much of the world faces starvation while food grown on industrialized farms goes to rot because it is not economical to provide the starving populations with the food. Much better to sell them genetically modified seeds that Monsanto can continue to make profits from when regular seeds would work fine.

As previously posted. Monsanto is the poster child for patent reform. They are about as welcome by those speaking against it as Klansmen would be by those speaking against gay marriage.

[SamFox]

Monsanto belly aching? If pollen from their altered crops gets on to a non BMO farmer's crop, Monsanto sues them! Few farmers even want Monsanto's crap on their crops. But Monsanto sues those who are victimized by their pollen any way.

Monsanto can take their patents & genetically altered crops & put em where the sun does not shine.

These slimes don't even have to let you know you are eating altered food.

SamFox

[SamFox]

The sentence with "...a non BMO farmer's crop," should have read "GMO" not BMO.

SF

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