By Dennis Crouch
Bowman v. Monsanto (SCOTUS 2013)
In its newly filed brief, the US Government has agreed with Bowman that violation of use restrictions on commodity GM soybeans cannot result in patent infringement. However, the Government ultimately sides with Monsanto in arguing that the progeny beans grown by Bowman represent an infringing "mak[ing]" of Monsanto's patented invention.
Briefing continues in the GM seed case between the Indiana farmer Vernon Bowman and the developer of GM glyphosate resistant "RoundUp Ready" soybeans Monsanto. Monsanto holds two patents that clearly and literally cover the seeds in question. U.S. Patent Nos. 5,352,605 and RE39,247E. For several years, Bowman had been looking for a legitimate way to grow RoundUp Ready soybeans without paying the large license fee charged by Monsanto. What he did was find a seeming loophole in the Monsanto license agreement that allowed farmers to sell soybeans to the commodity market without any ongoing restrictions on the use of those beans. Call these "authorized sales" because the unrestricted sale of GM seeds to commodity market was authorized by the patentee, Monsanto. Normally, those commodity beans are purchased by CAFO and public school lunch operators, but Bowman purchased them with the intent of growing more soybeans. The nice thing about soybeans is that they self-pollinate and thus apart from mutation, soybean progeny are genetically identical to their forebears. The US commodity marketplace does not normally distinguish between GM and non-GM soybeans. However, Bowman relied on his reasonable assumption that most of the beans would be RoundUp Ready because of Monsanto's deep market penetration. Bowman planted the beans and fond that the bulk were resistant to the glyphosate herbicide. Bowman saved some of his harvest for replanting and sold the rest back to the commodity market. This continued for several years until Monsanto sued Bowman alleging patent infringement – arguing that Bowman's operation was "making" new infringing seeds in violation of the Patent Act. 35 U.S.C. 271(a) ("whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States … during the term of the patent therefor, infringes the patent").
Thus far, courts are siding with Monsanto, but now the Supreme Court will weigh in on whether those Monsanto-authorized sales should be seen as exhausting the patent rights in the progeny. The judicially created doctrine of exhaustion is designed to better ensure free alienation of goods and a robust secondary market. Exhaustion fits within the centuries long common law history of rejecting covenants and conditions that unduly limit the alienability (resale) and use of property rights. Although much of the property case-law has focused on real estate, the rules against unreasonable limits on alienation and use are at their peak in the context personal property, such as the soybeans at issue in this case. For the most part, restrictions on use and resale of personal property will not be enforceable against a bona fide purchaser. Under the patent exhaustion doctrine, patent rights are said to be exhausted for goods that enter the stream of commerce with the patentee's authorization and without restriction. Thus, when Ricoh sells a patented copier to a customer, the patent rights are exhausted and Ricoh cannot later assert patent infringement when the customer sells the copier to a third party or when that third party uses the copier. Unauthorized sale and use can each constitute patent infringement, but Ricoh would have no case here because its patent would be deemed exhausted. Final point on exhaustion is that it normally applies on an item-by-item basis. The fact that a customer owns an authorized Ricoh copier whose patent is exhausted does not provide the customer with any authority to build another copier that infringes the patent. Making that new copier would constitute patent infringement.
The case at hand is unique because of the self-replicating nature of soybeans (and life in general). In its brief, the US Gov't frames the issue as:
Whether the authorized sale of one generation of a patented plant seed exhausts a patentee's right to control subsequent generations of that seed.
In his framing of the question, Bowman identifies the Federal Circuit's decision as creating a loophole for self-replicating technologies.
Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?
Monsanto took its turn by presenting questions in apparently ad absurdum form:
1. Whether the first-sale doctrine grants the purchaser of a patented article the right to make, use, and sell an unlimited number of new copies of the patented invention that have never been sold.
2. Whether patent treats as per se unenforceable all restrictions imposed by license on the use of a patented article following an authorized sale.
There is some amount of cross-talk in these questions presented. Each party accuses the other of seeking an exceptional rule for self-replicated technology. Monsanto here also attempts to bring-in an additional factual question regarding whether the commodity seeds were actually sold without use restrictions.
As suggested above, the key briefs have now been filed (except Bowman's reply brief) and oral arguments are set for February 19, 2013.
I previously discussed Bowman's brief here: https://patentlyo.com/patent/2012/12/patent-exhaustion-gmo.html
U.S. Government Brief: The most important brief filed in the case is most likely that of the US Government filed as a joint effort by both Department of Justice and the US Patent Office. That brief fully supports the Federal Circuit's holding that patent exhaustion does not apply to the progeny because the progeny are new articles of manufacture. The brief cites case-after-case where Supreme Court has indicated that exhaustion only applies to the article sold and does not permit the purchaser to make new copies. Unfortunately, the Government brief does not seriously engage the peculiarity of this case – that the patented article is life form that self-replicates by its nature- other than by noting that Bowman "creat[ed]" the progeny "through planting and cultivation." In his brief, Bowman disputes that growing crops constitutes "making" because seeds that fall to earth will naturally sprout and grow without human intervention. The Government also tries to make a distinction based upon elements of the PVPA, but I don't believe those hold water.
On one element, the US Government agreed with Bowman – that the Federal Circuit rule that a patentee's conditional sale of patented goods binds subsequent downstream purchasers. The Government writes that the proper rule, under Supreme Court precedent, is that downstream purchasers will not be liable patent infringement based upon failure to comply with use restrictions placed on the original authorized sale.
Restrictions on downstream use or resale may be enforceable as a matter of state contract law, but a purchaser's failure to comply with such restrictions does not constitute patent infringement.
Although agreeing in principle with Bowman, the Government then reiterated that Bowman is liable for the progeny that are not exhausted.
Read the brief: /media/docs/2013/01/11-796_affirmance_usa.authcheckdam.pdf
“Moreover, in this case, it is clear that Monsanto authorizes that the seed may be sold to grain elevators [a second sale] where they may be mixed with seed generally and sold for ANY purpose.[a third sale]”
These are FACTS.
I notice that those who would spin facts, and find that they cannot spin particular facts, tend to try to ignore those particular facts (much like those that try to kick dust over the exhaustion doctrine to begin with).
I would be curious (perhaps morbidly so) to see how these facts are spun.
Malcolm, you make the assumption that every seed that has the patented gene is, in effect, "owned" by Monsanto such that it can dictate what the "possessor" of the seed may lawfully do with the it. The problem with this of course is that once the patented plant is exposed to nature, it spreads naturally. Moreover, if the farmer does nothing with his the seeds from his crop, simply leaving them in the field, they will reproduce on their own and spread far and wide. Simply identifying that there is a seed, or a whole field of seeds, having the patented gene in the particular location proves nothing about whether those seeds came from Monsanto or from nature.
Moreover, in this case, it is clear that Monsanto authorizes that the seed may be sold to grain elevators where they may be mixed with seed generally and sold for any purpose. Farmers have for generations been using such commodity seed for late-season crops. How can Monsanto with a straight face say that having authorized the sale of such seed for such purposes now say that the farmer must pay. This is the same thing as if a manufacturer sent you a "free gift" in the mail and demanded that you pay for it. There is no difference.
Only if Monsanto can demonstrate that no seed in a field could have come from anything but an infringement, would I ever agree with the principle that Monsanto could prove infringement simply by doing a DNA analysis on the seeds or crops in a field.
“In fact, the seeds here are readily identifiable as belonging to Monsanto by numerous observations”
BZZZT – wrong.
Two sacks of such seeds on a table, one having just been sold by Monsanto (patent exhaustion in play), and the other “made” through a second generation planting (patent exhaustion likely in play – not the point of this hypothetical, so let’s stay out of those weeds).
Two sacks. What are the “readily identifiable numerous observations that you are going to use to tell the difference.
Throw a third sack on the table, exactly like the first sack, but not yet sold by Monsanto. Same question.
Re: “aware of any court that would force” – BZZZT – strawman answer. You have jumped past the infringement question (wherein exahsution is in play) right to damages. You can’t even get there unless you determine whether infringement has happened.
“Do you believe it’s going to turn out well for Bowman?”
Let’s be clear. Are you asking me if the law will be followed, or if the Supreme Court will change the law?
Whether this turns out well for Bowman will depend on which question you are asking.
If a colt shows up, outside the fence, without a brand? Who owns it?
In fact, the seeds here are readily identifiable as belonging to Monsanto by numerous observations. And it’s not a “single colt” we’re talking about. We’re talking about thousands of colts showing up at the same time. What happens when a thousand colts whose identity can be easily determined “show up outside the fence”? What does your case law say about sacrificing all those colts to make clones of each of them and then selling the clones? Does the owner of the original colts get compensated?
in the case of seeds or animals that breed naturally when exposed to the environment, we need to ask more of the patentee. Otherwise, they just can drop the seed from planes, release the patented fish into the lakes and rivers, or release the patented animal into the forest and then expect farmers, fisherman or hunters to pay.
I am not aware of any court that would force any “infringer” to pay any damages under those circumstances. I think it’s far more likely that the patentee will end up in prison or pay civil penalties for such actions.
MM, I think the answer has to be in some form of maintenance of control by the patent owner. If the patent owner sells the patented self replicating whatever to the public without any restrictions at all, I think he may lose the control necessary.
Normally, a rancher fences his animals. Alternatively, a rancher brands his horses so they can run the range without fences.
If a colt shows up, outside the fence, without a brand? Who owns it? What if the rancher takes the colt, raises it and breeds it with his other horses? Can the patentee later claim ownership or infringement?
In the case of biological drugs, I will assume they must be cultured by man to survive in any useful form. The petri dish is then like a fence. If a competitor develops a rival culture, he must have done something beyond nature to build it.
But in the case of seeds or animals that breed naturally when exposed to the environment, we need to ask more of the patentee. Otherwise, they just can drop the seed from planes, release the patented fish into the lakes and rivers, or release the patented animal into the forest and then expect farmers, fisherman or hunters to pay.
The same issue is discussed in the government’s brief:
The government includes in this section of the brief the potential for a contrary decision by the Court for consequences “not limited to genetically modified crops,” including “enforcement of patents for man-made cell lines, DNA molecules, some nanotechnologies, and other technologies that involve self-replicating features.” These consequences would be visited on the numerous companies [that] have marketed patented recombinant plasmids and transformed cell lines capable of replication with limited human intervention” rendered patentable under the Court’s Chakrabarty decision. “These patents would lose much of their value if purchasers of patented bacteria or other self-replicating products could reproduce and sell those items free from the restraints of patent law,” according to the government. Finally, the brief rejects Farmer Bowman’s argument that contractual remedies are sufficient, because “[c]ontractual remedies are ineffective against downstream purchasers not in privity with the patent holder. . . [a]nd patent law provides remedies unavailable under contract law, including injunctive relief and enhanced damages,” citing 35 U.S.C. §§ 283-285.
Did Kevin help write that brief, too?
I’m starting to get a strong feeling that this case isn’t going to turn out the way you think “current law” says it should, anon. Do you believe it’s going to turn out well for Bowman? Let us know.
Somehow, the natural use of a seed for planting is forbidden.
Somehow, the reason with complete nexus to the gist of the patent and the very reason for the sale of the seed (for planting) is forbidden.
No one – and I mean no one – has yet addressed this critical factor.
Let’s squelch the dust clouds and at least try to address the point at hand, people.
Jananne, do you perceive any problem with a broadcaster demanding payment for people actually watching their programming?
What about a company that mails products, unrequested, to people who keep them. Can the company sue for payment?
If you put up a website with a song you compose, and track people who visit the website and listen to the song, can you send them a bill, let’s say, for $1million for each time they listen and if they refuse to pay, have some right of action against them?
You go to central park and act out Hamlet with some friends. Can you charge passersby a fee for watching?
You patent the improved fish and put it in a lake where it breeds with other fish. Soon most fish are of the patented variety. Can you sue fisherman who fish the patented fish for selling them?
You patent the improved cat. One escapes and soon every cat in a region has the improved gene. Can you sue every cat owner for infringement if they breed or sell their patented cats?
And the beat goes on.
Can one sell seed and own the resulting crop?
Can one “sell” the patented bull and own all offspring, granting the rancher a limited right to use the offspring for producing milk?
Can one sell a lawbook to a student and restrain his subsequent sale of that lawbook? What if the condition subsequent was limited to sales for a price greater than or equal to the prevailing price for new lawbooks?
Can one sell a patent and still retain the right to approve whom may be sued?
I have a seed. I own the seed. What may I do with that seed?
Actually, the IPO brief does argue repair/reconstruction. It cites Aro Mfg.
Les, but Kirk is responsible for a whole lot of infringement because he allowed the Tribbles to multiply. His duty to the patent owner was to prevent multiplication. His act of not acting was an infringement!!!
Restraints on alienation (in the form of conditions subsequent) of personal property after sale are VOID under common law.
link to jstor.org
According to copyright law, Bobbs Merrill and by statute, the owner of a copy has the right to sell it. Presumably, the owner also has a right to use it.
Who owns the plants in the field, and the seed of that plant?
Who?
According to property law, the person who owns the land owns the crop, and the seed of that crop.
The owner of the plant, the owner of the seed of the plant, have a right to sell it under common law.
We cannot and should not even attempt to decide the issues involved in this case in a legal vacuum. Absent a statute that expressly overrules common law, the result must be dictated by common law.
The patent law protects man made products. Man made. Thus, an infringer is one who actively combines substances to produce the patented product. These are products of man.
But, products of nature, of the land? The patent laws cannot or should not extend to these.
I’m not sure Kirk fed any of them. As I recall, they got into the replicators, and other ships systems themselves and started wreaking havoc. And it was Scotty that beamed the lot of them to the Klingon Engine room, “where they’ll be no tribble at all.” That might be viewed as exporting, but I don’t think exporting is an infringement…..
So, Kirk infringement by providing food on the Enterprise which the Tribble ate?
Similar to Monsanto's theory. Very.
“in the words of Chief Medical Officer Dr. McCoy, “they are born pregnant” ”
In other words, the first sale encapsulates the entire gist of the invention (including the “self”-replicating gist) – the fact that later generations occur is quite besides the point.
As mentioned, the case on point, Univis Lens deeals with the sale of an item that encapsulated the entire gist of the invention (and there, needed someone else to take an affirmative step in order to actually “make” the invention – AFTER the initial sale. The Patent holder attempted to control things after a legitimate first sale for something that had the gist of the invention.
The Court would have none of such shenanigans.
The first sale exhausted the patent rights (regardless of any later “make”).
I’m not sure if it has a bearing on the over all discussion, but you have to feed Tribbles to get more tribbles…Air and water are probably not enough…. and we have no evidence that either is needed. It was whoever put the tribbles in the quadro-triticale that may or may not have “made” more tribbles. That indeed, is the trouble with tribbles, if you feed them, you get more tribbles.
Once again, your ego is in the way.
Dr. Noonan is too polite and will not put you in the place you deserve. You mistake that kindness. I have no such reservation.
I have to touch it when I pick it up off the ground (after my rapier wit separates it from your shoulders).
Your concern is noted, but you shouldn’t worry – I wear gloves when I pick it up.
Of course, if you were truly concerned, you would post in an intellectually honest manner. But it appears that that is too difficult for you.
by weird hang-up, you mean the habit of handing your head back to you?
No, I mean your habit of needing to touch my head all the time.
you do know who helped write that brief, right?
Of course. Kevin’s a smart guy. That’s why his head-in-the-sand behavior during the Prometheus kerfuffle was so disappointing.
LOL – you do know who helped write that brief, right?
“ don’t think it misses the point either, NWPA. Everything anon has written suggests that he believes that (2) is the right answer”
BZZZZT. Wrong.
It misses the point.
It does not deal with the fact that exhaustion nullifies the question.
I have not refused to engage – I have engaged with the proper question of law.
As your favorite president used to say, “Well, there you go again” – twisting and spinning.
You have to ask the right questions.
“anon has some very weird hang-ups when it comes to discussing patent law”
LOL – by weird hang-up, you mean the habit of handing your head back to you? It’s not that weird, and you make it pretty easy to do. What’s weird, is that you don’t seem to learn how to discuss the law properly.
How about saying why it misses the point? I don’t think it does.
I don’t think it misses the point either, NWPA. Everything anon has written suggests that he believes that (2) is the right answer (or at least the correct answer in view of “current law”). We went through the same exercise up thread with the same result (he refuses to engage).
As everyone knows, anon has some very weird hang-ups when it comes to discussing patent law. Have fun “rewriting your focus”, NWPA, and trying to please him. And oh yes: welcome to “the circle”! 😉
Looks like the IPO amicus brief answered my question:
link to patentdocs.org
“Pointing to erythropoietin-producing recombinant cells in Amgen, Inc. v. Elanex Pharms., Inc., No. C93-1483D, 1996 U.S. Dist. LEXIS 22015, at *9 (W.D. Wash. Feb. 6, 1996), the brief notes that “[p]atented seeds are not the only technologies where ‘making’ has properly been considered as a separate infringing activity.” The brief then argues that:
If the doctrine of patent exhaustion were improperly extended to the routine growth of recombinant host cells, this could have a devastating effect on investment in the production of new biologic drugs made from recombinant cells. If patents on recombinant cells used to make new drugs could be easily circumvented by reliance on the exhaustion doctrine, the deleterious effects on the pharmaceutical industry could be even greater than in the agricultural arena.
Guarantee you at least some of the Supremes will be wanting to talk more about this.
Yes, thanks for the correction
So, in effect, patented seeds that spread de facto forbid farmers of doing what they have been done for millenia, and you do not have any problem with that because it will open a new market, the market of “clean seeds” ? As for me, I’d rather see the patent law reflecting some common sense in this matter.
Jay, imagine that CBS wanted to charge you money for watching their shows using antennas? They broadcast their programming. You, you PIRATE, deign to watch it without paying for it. You thief.
What would you say to that?
“ then have someone use it without giving them back some of the profit.”
Except that’s not quite the case here, as Monsanto releases the item in the first sale at its chosen price, and the issue (exhaustion) applies regardless of the technology. In reality, this has nothing to do with your “not keeping up” theory.
But your theory does sound pretty.
I think the chief problem is that the law has not kept up with technology. Just like there are antiquated laws on the books, there are also new situations that there aren’t any laws for, as far as I am concerned.
that leads to people struggling to find laws that protect their rights. I can understand the issue that someone has when they take the time to develop a new product- as they see it- and then have someone use it without giving them back some of the profit.
This problem is similar to the one that people face often on the internet, with respect to images from movies etc.
IANAE, use is not infringement to the owner — by definition. The owner has the right to use. The right. Free of the patent laws.
Nature generates a seed to germinate — to make new plants and to make new seed. Germination consumes the seed, but makes new seed. Germination is not an infringement as it is not an act of man, but of nature.
In order to shoehorn infringement into this context, you have to change basic patent law. You have to say that basic patent law does not apply to seeds.
We have to ask ourselves this question: Do we need to overturn fundamental precepts of law, of patent law, of direct infringement (and impose a mens rea requirement) in order to accommodate the business practices of Monsanto?
The law:
The owner of an article has a right to use it.
One cannot impose use restraints that operate on personal property via property law, or via IP law.
Monsanto can impose use restraints by contract. Their remedy is breach of contract. Their remedy does not include patent infringement for using the sold seed.
The owner of an article has a right to use it.
The natural process of nature cannot be an infringement of the patent laws. They are acts of nature, not of man.
“if the use is licensed by the patentee. Exhaustion is one way that can happen‘
Your ignorance is showing. Exhaustion supercedes licensing and contracts.
Try to at least fake it that you know what you are talking about IANAE.
“But it is a defense”
cite please.
Is it next to “the dog ate my homework” defense?
“It’s a dubious fact position to take”
It’s a dubious argument to make – corrected.
You are welcome.
“now that they’re using a patented hammer? ‘
unles of course, llike, they bought the hammer.
(and please if you want to avoid using recycled straw – that would be a self-replicating hammer)
“I own the factory and the metal” – LOL, bakc to that derailment? Again, to avoid the strawman incomplete analogy, that better be a self-replicating factory that was initially sold in order to replicate factories.
“even exhaustion doesn’t give him the right to copy for profit”
It does when the sale’s nexus is the use = copy. It’s the sine qua non to exhaustion.
The owner has a right to use it.
Use is an act of infringement. The “owner” only has the right if the use is licensed by the patentee. Exhaustion is one way that can happen, but it still needs to be proven. It’s his license, not his title, that permits him to use it.
The rightful owner of the seed has a right to use it.
Sure, provided he bought seed that could be traced back to the patentee’s authorized seed, which he also can’t prove.
But still not to copy it. Which has also been the law for centuries.
In Global-Tech, the rightful owner of the patented deep fryer didn’t have the right to copy it for resale, and it wasn’t even controversial. The point wasn’t even argued. Farming is how you copy seed for resale. It’s an unlicensed act of infringement, even if you own the seed.
IANAE,
Hammer, if he owns the hammer, it is beyond the patent. The owner has a right to use it.
Ditto seed.
The rightful owner of the seed has a right to use it.
You still have not accepted this statement of law. It is been the law for centuries.
If the car is parked, it is given a ticket. it is not a defense to the owner of the car that, for example, his daughter parked it there and that she took the car without permission.
It’s a dubious fact position to take, which is why actual theft is a more convenient hypothetical. But it is a defense, and it’s not a mens rea defense. Try the speeding ticket hypothetical instead, if this is how hard you’re going to work to miss my point.
Farmers from time immemorial have been planting saved seed. Now, explain to me why this is an infringement?
Because from time immemorial those seeds were not patented. Now they’re using seeds that are.
You might as well say that carpenters have been banging in nails since time immemorial, so how can it suddenly be infringement now that they’re using a patented hammer? The patent makes the difference. It’s kind of a sine qua non to patent infringement.
The farmer owns the seeds. But he has no right to plant them?
Why?
Because “I own the factory and the metal” is no defense to “your factory is churning out patent-infringing product”. Similarly, “I own the seed and the land” is no defense to “you made a bunch of copies of the seed and now you’re selling them in infringement of my seed patent”. If ownership was a defense to infringement, there would never be liability for infringement. Yes, the owner has the right to use by exhaustion, but even exhaustion doesn’t give him the right to copy for profit when somebody else has a patent.
IANAE, Parking Ticket?
I don't recall any cases on point, but I think the ticket is given to the owner of the car. If the car is parked, it is given a ticket. it is not a defense to the owner of the car that, for example, his daughter parked it there and that she took the car without permission. Give me a break.
Think IANAE.
Farmers from time immemorial have been planting saved seed. Now, explain to me why this is an infringement? The seeds that made the plants were purchased from Monsanto or its agents. The farmer owns the plants. The farmer owns the seeds. But he has no right to plant them?
Why?
The rightful owner of a copy has the right to use it, and to sell it. It is his. Under common law, the rightful owner of a copy is free from the patent or copyright and may use the copy, and may sell it.
What has been done here by the Federal Circuit is in direct violation of Quanta, and of historic common law. It is a perversion of law. It upends centuries of well accepted law. It is unconscionable in the extreme.
I don't understand the Government's position, but can only explain it by noting the involvement of the PTO. This is Kappos position, plain and simple.
Amen to that Night.
The CAFC has it’s own share of Activist as well. Let’s hope Rader and company stay strong enough to beat them down as we prepare to inevitably go back to the Court for Bilski II and the Ultimate Software Showdown!
“I am not ceratin what you are making up at this point, MM.”
Isn’t that all MM ever does is make stuff up? At least Ned is now beginning to state the statutes he wants changed so that they support his theories/ideas.
MM is still citing Prometheus 9-0 as if it actually held his whacky theories as law.
Are you suggesting the need for bean counters?
Do. Those. Periods. Really. Work. When. You. Are. Attempting. To. Derail. The. Conversation. From. The. Actual. Substantive. Legal. Question?
(you might try seeing if you actually get to a parking ticket type question if you address the exhaustion question first)
He constantly goes back to mens rea,
No, I don’t.
Answer. The. Parking. Ticket. Question.
Please.
You should notice that he is actually avoiding talking about infringement too (with IANAE’s known pro-infringer bias, this is almost a given).
Note his nod to MM – and how both want to avoid actually talking about the substantive legal question here.
Just another example of that “high-quality (not) mature, adult, intellectually honest conversation that one can expect from those two.
I know. He constantly goes back to mens rea, although that is, or at least, should be, legally irrelevant for direct infringement.
I just asked him to carve out all the mens rea consisderations from his infringement argument. As such, without mens rea considerations, the farmer, as he has done for years, buys commodity seed and plants it for late season crops. He is sued by Monsanto because his field contains some patented plants. Is he an infringer? If planting is an infringement, the next question is just how the patented seed got into the commodity seed.
There you go again with Bowman's guilty knowledge. This has to be legally irrelevant.
Posture this case as one against a farmer who has been buying commodity seed for late season crops for generations, as is commonplace in his community. He is sued by Monsanto because they found patented plants in his field.
How did the patented seed get there?
Monsanto green lighted the sale to commodity seed resellers.
Now, discuss your case.
Ned,
You will notice that IANAE has carefully avoided any discussion of exhaustion.
Think about it.
“ It’s also why the word “unintentional” isn’t strictly appropriate,”
LOL – strictly? Try “at all.”
But MM knows the answer: “Whatever”
for doing no more than he what he has done from time immemorial.
If you’re wrong anywhere, that’s where you’re wrong.
Doing an old thing with a new, patented material can properly be an infringement.
Of course, Bowman was doing much more than that. He has no legitimate claim to simply buying seed and planting it the way he’s always done. He knew he was using Roundup-Ready seed. He selected for Roundup-Ready seed. He sprayed Roundup. He did this for years. He’s not the poster child for an innocent infringement exception. And an exception it would be, because introducing into your “since time immemorial” seed-copying business a patented seed for the very reason it was invented is a textbook case of patent infringement.
You have to add in knowledge and intent or otherwise everybody is an infringer.
Answer. The. Parking. Ticket. Question.
LOL – and how is that a defense? How does that negate infringement?
Oh wait, it doesn’t.
/eyeroll
Criminy, let me hold your hand:
In the Univis case, what was actually made? At what point was that item made? To what point did the court go?
Here’s a hint: the court only followed the chain as far as they needed – no further.
Obtuse. Is it on purpose? (said in the best Andy Dusfrene tones)
IANAE, hold it.
It is my understanding, and correct me if I'm wrong, that almost every farmer plants commodity seed purchased from grain elevators for late season crops. This is not a new practice, but a practice that has been going on for a very long time, if not for centuries. In areas where Monsanto is selling the patented seed, the commodity seat will be contaminated with the patented seed. If simply planting commodity seed contaminated with Monsanto patented seed is an infringement, then every farmer in an area where Monsanto is selling the patented seed suddenly becomes an infringer for doing no more than he what he has done from time immemorial. The Supreme Court, in my humble opinion, will not consider such ts to be an infringement.
You have to add in knowledge and intent or otherwise everybody is an infringer. But knowledge and intent applies only to inducement, and there is no direct infringer. Everything is FUBAR about this case.
If the innocent planting of seeds not known to be patented seeds is an infringement, the Supreme Court will want to know.
They might want to know someday, in the highly speculative future, when a case or controversy turns on that question.
The facts of this case are nowhere near that hypothetical. The question is moot, and it’s not one that should be decided in this case, any more than it would have been proper for Bilski to speak for all business method patents.
Holding Bowman liable for his blatant and deliberate infringement has absolutely no implications for the poor innocent farmer who had crafty Monsanto operatives sneak onto his acres of an evening and replace all his conventional crop with Roundup-Ready crop.
Now, answer the parking ticket question. It’s an astonishingly simple one to go unanswered for so long on a blog full of lawyers. I know MM knows the answer.
That discussion of inadvertent infringement is more important than you think. If the innocent planting of seeds not known to be patented seeds is an infringement, the Supreme Court will want to know. You can see, from the recent oral argument concerning international exhaustion of copyrights, that the Supreme Court is very concerned about the consequences of its holdings, particularly in situations involving the doctrine of exhaustion.
Quanta:
link to scholar.google.com
Les, long ago, in cases such as Bobbs Merrill, the Supreme Court recognized the substance of a sale such that a sale could not be camouflaged as a license when considering exhaustion. If the product "licensed" is not required to be maintained or returned, it truly is not licensed, but it is sold. Thus the law of exhaustion will apply regardless of whether the particular contract is denominated as a sale or license.
All your discussion about Bowman’s knowledge and intent is completely and totally irrelevant to direct infringement.
I’m not discussing his knowledge or his intent, nor are Monsanto or the government, other than pointing out that his infringement was blatantly intentional and it’s silly to even be discussing whether lesser degrees of intent are enough.
But, according to the government brief, mens rea seems to be required in order to infringe.
I don’t know what part of the brief you’re getting that from. All they said was that it’s pure speculation (and contrary to Monsanto’s stated policy) for Monsanto to sue inadvertent infringers. Does “inadvertent” give you any clues that “unintentional” doesn’t?
I’m not talking about mens rea either. Think about the parking ticket example. Just think about it for a second. It’s an offense without any mens rea requirement, so lack of mens rea is no defense. Your car is clearly where it’s not allowed to be. What’s your valid argument for beating the ticket?
This isn’t an inducement case, and this isn’t an intent case. This is a case where a farmer planted many acres of herbicide-resistant seed, on purpose for money, and used copious quantities of that herbicide. For something like eight years. His infringement couldn’t be more blatant or direct if he assembled the seeds by hand, one nucleoside at a time.
Well… I don’t know Quanta…but it seems to me Dupont might not sell soy beans so much as license them for use in making a crop to be used as food or as a raw material in a non-crop product, such as automotive foam but not used as input or raw material in making a second generation crop… so…. I don’t know if the line is as bright as you say….
IANAE, I think you are beginning to see the problem. Direct infringement only requires an act. It does not require intent to infringe, i.e. knowledge of the patent. All your discussion about Bowman's knowledge and intent is completely and totally irrelevant to direct infringement.
But, according to the government brief, mens rea seems to be required in order to infringe. But mens rea is a is required only inducement or contributory infringement. There is something fundamentally flawed in the government's theory of infringement.
Again, inducement, for liability, requires direct infringement by a person. However, what is being induced here is a seed. A seed is not a person.
Which page of the infringers’ handbook is this accidental infringement notion covered on?
Probably the page that discusses how damages are calculated.
You still haven’t identified any conflict between what I wrote at 10:48 and your personal views.
I didn’t think there was a conflict. Good to know.
Here it is again:
use = make unlimited generations of beans = sale of first bean exhausts patent with respect to beans generated through propagation of the originally purchased beans and through propagation of any progeny beans, regardless of how many generations have passed
I don’t think it’s an unreasonable view, necessarily. But it is your view. I’m not sure why you feel so embarassed to admit it.
Direct infringement simply requires that you do the act.
Yes, that’s why these aren’t mens rea questions. It’s also why the word “unintentional” isn’t strictly appropriate, and might be confusing you.
If I steal your car and park it by an expired meter, why don’t you have to pay the parking ticket? Is it because you lack mens rea for the offense, or is it for some more fundamental reason?
Of course people who plant patented crops are direct infringers. Leaving a seed in a field where that same type of seed is cultivated is tantamount to planting it. Yes, nature ultimately takes its course, just like nature causes metal to retain its shape when stamped, and nature causes rubber to heat and cool in the mold.
I hope you’re not suggesting that a person can’t be liable as a direct infringer if his actions knowingly set in motion natural processes that result in infringement. Diehr held that you can have a perfectly valid patent claim to a process performed by man that happens to rely on the laws of physics. It’s well known by now that everything we do is done by interacting with the universe around us in accordance with the laws of nature. And yet, there is such a thing as direct infringement.
Farmers don’t persuade or induce seeds to grow. Farmers cause seeds to grow. It’s called “agriculture”. And they’d like some credit for it, please. It’s not like they can get any other kind of credit.
Exactly.
And, even if the seller imposes restrictions, the Supreme Court held in Quanta that the restrictions are not enforceable in patent law. Exhaustion occurs nevertheless – such that even if the contract said that if Eve reproduced, a further royalty was due, that contract might be enforceable, but Able, her offspring, would not be infringement.
That case just tracked the ffacts to the actual make
Oh, thanks for the clearing that up.
What.
The.
F
IANAE, but what you seem to ignore is that the government does not consider unintentional seed planting to be infringement and it assures the Supreme Court that Monsanto does not intend to bring such cases.
Direct infringement simply requires that you do the act. Whether you would know of the patent or not is irrelevant. Does all this talk about guilt and mens rea has nothing to do with direct infringement. The government theory sounds in inducement.
The only remaining problem seems to be that one is inducing a seed to infringe a seed cannot be a direct infringer.
No. It wasn’t. That case just tracked the ffacts to the actual make – most definitely not through the econominic life-cycle.
Try to keep up.
Better trolling please.
B-b-b-ut your honor, it was accidental
Which page of the infringers’ handbook is this accidental infringement notion covered on?
LOL – nothing like recycled straw.
Yes. Let’s. Specifically, the one inwhich you crowed about the Office’s response with the link to the Integration doctrine.
LOL – massive (and continual) MM FAIL.
No, the article is not self- replicating. The printer replicated it.
Is a C-note placed in a photo-copier self replicating? I’m pretty sure Treasury comes down like a tone o’ bricks on the guy or gal that placed it in the copier, and not on the bill or the copier
The legal issue is not concerned with the entire economic life-cycle.
Hmmm. Seems like the economic life-cycle was considered by the court in your beloved Univys Lens case.
If Eve was sold by the patent owner or a licensee as a self replicating android, and Bowman used her as advertised to replicate, I say exhaustion applies as Bowman only used Eve for the purpose for which she was sold.
To rule otherwise would be akin to selling copyrighted recordings and alleging infringement each time they are played.
the law gets smudged at the Supreme Court.
Sometimes. Sometimes it gets “smudged” in a way that is predictable by people who don’t bury their heads in the sand.
9-0. I’m still loving it. Shall we revisit some of your commentary in the Prometheus threads to remind ourselves of your deep insight into the “law”?
MM, if Bowman simply left the seed in the fields while harvesting the plants, what then?
Then we have a different set of facts, most likely the lawsuit is never filed, but if it is Bowman can try to argue the infringement was accidental. It’s still infringement, of course, but I’m sure you understand how these facts change things a bit.
Eat beans.
“But microbes are not a commodity and have little use outside off replicating in a Petrie dish.”
Really? Ever eat cheese? yougurt?, bread? drink beer, burbon? vodka? whiskey? take penicillin? clean an oil spill? digest something? mulch much?
IANAE,
Is this where your “silence” is to show everyne who’s boss?
You might want to rethink your tactics. They are not working too well for you.
Keeping the virus alive – by itself – may sound in the repair/reconstruction doctrine.
That doctrine is simply inapposite in discussing replication.
Let’s leave that red herring to die on its own.
If you have seed in your field and it naturally reproduces, you infringe under the government’s theory if you KNOW that it is patented.
Yup. Just like in real life. That’s how patents work. Your factory churns out stuff. You know it’s happening. You can’t blame the factory for your infringement.
Parking tickets don’t have mens rea either. You didn’t pave the parking spot or put in the meter (they’re “natural”), but if you parked your car there, you have a problem.
But if someone else parked your car there, you don’t have a problem. Why not? Can’t be because you lack mens rea.
you are confusing direct infringement with inducement.
We can definitely agree that one of us is confusing those two things.
IANAE, your post clearly shows that you are confusing direct infringement with inducement.
What if Bowman, instead of replanting his seed, dumped the seed in a nearby river where they spread far and wide, so that every farmer along the river for a 1000 miles now had the patented seed growing naturally on his land.
Apart from the obvious problem that a for-profit farmer is chucking his profits in the river (i.e., the actual facts of the case are much more clear-cut), none of the other farmers along the river would be infringers by the mere fact that seed washed up on their farm. This is not even a mens rea issue. Bowman might still be an infringer for “throwing his seeds away” if he knows what’s downriver, but that’s a question of fact.
If those farmers notice that they have some RoundUp-Ready seed in their harvest, and select that seed to plant the following year, then they’re direct infringers.
Inducement.
IANAE, I think we are talking here about inducement. The seeds grow naturally and so long as the farmer does nothing, he should not be guilty of anything. If he actively cultivates the next crop knowing it to be patented, perhaps you might be guilty of inducement.
But the charge here is not inducement, but direct infringement. Direct infringement does not require any knowledge or guilt. The government's theory, indeed the whole case against Bowman, may screw up patent law tremendously if it succeeds.
If this is infringement by man, we can only be talking about inducement.
The metal cooled all by itself. Naturally. All I did was pour it into the mold. I’m not a direct infringer, right?