|The AmeriKat - small, black, brown, stripey, |
and worth millions but thankfully
only costs the price of a chai tea latte
The ‘605 Patent
4. A plant cell which comprises a chimeric gene that contains a promoter from cauliflower mosaic virus . . .The ‘247E Patent
|Molecular represntation of glyphosate|
103. A recombinant, double-stranded DNA molecule comprising in sequence:
(a) a promoter which functions in plant cells to cause the production of an RNA sequence;
(b) a structural DNA sequence that causes the production of an RNA sequence which encodes an EPSPS enzyme having the sequence of SEQ ID NO:70; and
(c) a 3' non-translated region that functions in plant cells to cause the addition of a stretch of polyadenyl nucleotides to the 3' end of the RNA sequence;
where the promoter is heterologous with respect to the structural DNA sequence and adapted to cause sufficient expression of the encoded EPSPS enzyme to enhance the glyphosate tolerance of a plant cell transformed with the DNA molecule..
116. A glyphosate-tolerant plant comprising a DNA sequence encoding an EPSPS enzyme having the sequence of SEQ ID NO: 70 122. A seed of the plant of claim 116, wherein the seed comprises the DNA sequence encoding an EPSPS enzyme having the sequence of SEQ ID NO: 70
128. A glyphosate tolerant plant cell comprising the recombinant DNA molecule of claim 103
129. A plant comprising the glyphosate tolerant plant cell of claim 128.
130. A method for selectively controlling weeds in a field containing a crop having planted crop seeds or plants comprising the steps of:
(a) planting the crop seeds or plants which are glyphosate-tolerant as a result of a recombinant double-stranded DNA molecule being inserted into the crop seed or plant
(b) applying to the crop and weeds in the field a sufficient amount of glyphosate herbicide to control the weeds without significantly affecting the crop.Monsanto’s Technology Agreement
|Monsanto's Roundup Ready|
- use the seed containing the Monsanto technology for planting a commercial crop only in a single season
- not to supply any of the seed to any other person for planting
- not to save any crop or second-generation seed produced from the single season crop for replanting
- not to use this seed or provide it to anyone for crop breeding, research, seed production, etc.
The Defendant's activities
|Gary, Indiana, Gary, Indiana, Gary, Indiana...|
In 2006, Monsanto contacted Bowman to investigate his planting activities. Bowman openly explained his practices in respect of the second-crop soybeans in correspondence with Monsanto’s representatives. The following fall, in October 2007, Monsanto filed a patent infringement claim against Bowman. The following month Monsanto investigated Bowman’s 299.1 acres of fields and confirmed that the second-crop soybeans from the commodity seeds contained the patented Roundup Ready technology. Monsanto did not allege infringement or breach of the agreement in respect of the first-generation seeds. In September 2009, the district court in Indiana granted summary judgment on patent infringement for Monsanto for $84,456.20. Bowman appealed.
The CAFC’s Decision
|Reportedly a soybean field|
Monsanto argued that growers’ sales of second-generation seeds to grain elevators did not exhaust Monsanto’s patent rights because under the agreement there is an express condition that the progeny of licensed seeds are never be sold for planting - although as the Amerikat understands it Monsanto said there is no burden on the grower to place such conditions on the grain elevators' sales to subsequent purchasers. Monsanto argued that a grower’s sale of harvested soybeans to a grain elevator is not an “authorized sale” if it results in those soybeans subsequently being re-planted. Even if the sale of the second-generation seeds to grain elevators is exhausted, the planting of those seeds is not exhausted because patent protection “is independently applicable to each generation of soybeans (or other crops) that contain the patented trait.” If Bowman’s argument were permitted, then patent protection for self-replicating inventions would be “eviscerated”. In Monsanto v McFarling (2006) and Monsanto v Scruggs (2002), the CAFC addressed the issue of unauthorized planting of second-generation seeds. In McFarling, the court stated that
“[t]he ‘first sale’ doctrine of patent exhaustion...[wa]s not implicated, as the new seeds grown from the original batch had never been sold. The price paid by the purchaser ‘reflects only the value of the ‘use’ rights conferred by the patentee.’” (McFarling at 1299 citing B. Braun Med v Abbott Labs (1997)).In both McFarling and Scruggs, the planting of the second-generation seeds came from the defendants first crops from the purchased seed which were subject to the Monsanto agreement. In Bowman, the second-generation seeds came from the grain elevator not subject to the Monsanto agreement. However, the CAFC said that the doctrine of patent exhaustion did not bar the infringement claims in McFarling or Scruggs and likewise it did not in this case.
“Even if Monsanto’s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article. "The court went on to cite Scruggs
“The fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.”
|The type of beans|
the AmeriKat would rather
Bowman also argued that Monsanto could not recover pre-Complaint damages because it did not provide actual notice of the infringement and did not require growers to mark second-generation seeds in compliance with Section 287(a) of Title 35. Bowman argued that
“if Monsanto is going to complain about farmers using the age old practice of buying commodity grain for seed; they could have. . . had their agreements require farmers to sell their patented grain to pre-approved grain dealers who would keep Monsanto’s patented traits separate. . .”
|...but no need to refer to|
“of no import because the specific accused products are not commodity seeds as a class, but rather Monsanto’s Roundup Ready seeds. Bowman planted Roundup Ready seeds with actual notice that Monsanto considered this activity to infringe its patents.""Hmmmmm...", says the AmeriKat, furrowing her whiskers. The end-result is that the CAFC affirmed the federal circuit’s decision and again affirmed the line of decisions that patent exhaustion applies to seeds that are first sold, but not to the subsequent generation of seeds. Even though subsequent generations of seeds still embody the essential features of the patented technology, as long as there is another use for the seed other than working the invention, the doctrine of exhaustion does not apply. Is that correct? The AmeriKat can see why extension of the doctrine to self-replicating technologies would be a living nightmare for patentees, but given the facts in Bowman the reasoning in this case does not sit well. Further, without identification as to the source and composition of the seeds in the grain elevator, the AmeriKat assumes that the farmer only knows whether they planted patented seed when their crops withstand the glyphosate-based herbicide and/or they are sued. Caveat emptor...