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Sunday, 3 March 2013

Seeds, strains and a touch of exhaustion: a reader asks ...

Bowman: ready for
a fight?
The IPKat has recently received a question from veteran UK patent attorney Michael Dean, two questions actually, which are reproduced here:
"I have come across a US case awaiting judgment, Bowman v Monsanto [which seems to be brewing up nicely according to the SCOTUS weblog here], where the latter assert they have rights against second (and later) generation seeds from a patented strain (of seeds first sold to Mr Bowman) and this is contested by a principle of exhaustion of rights. 
So far as you are aware:
1. Has there been any such view aired against non-biological inventions, e.g. patented computer viruses or self-replicating nano-machines?

2. Has there been any such view aired in the UK/Europe for biological or non-biological inventions?".
This Kat regrets that this case has travelled all the way to the US Supreme Court without anyone asking him about it at all, but he suspects that there may be many folk wandering around who think of little else.  He invites them to respond to Michael's question, preferably by posting their valuable opinions below.

Merpel feels vaguely uncomfortable about patents for computer viruses, though she imagines in her innocence that they can be useful in their own right as programs for the purpose of testing the efficacy of anti-virus programs.

3 comments:

Uncle Wiggily said...

This case was an uphill battle, to be sure.

However, the reportedly pro bono representation of Farmer Bowman will unfortunately likely contribute to a decision that is a public policy and jurisprudential fiasco. Think also of Larry Lessig's freebie representation of Eldred.

In other words, a lot of harm can be done with the best of intentions. When one is not getting paid, one has to work twice as hard and be twice as good or more than opposing counsel who is getting paid by the likes of Monsanto.

Bowman's counsel's oral argument in SCOTUS was underwhelming, to say the least.

Suleman said...

Chapter II Article 8 of the Biotech Directive is relevant to the scope of protection of claims covering biological material that can propagate. This is I suppose a separate sui generis right (in addition to the scope defined by the language of the claims). In answer to question 2 I don't know if the right defined by the usual claim scope is exhausted in Europe when it comes to plants from second generation seeds, but presumably the new sui generis right will catch such plants. I've provided Article 8 below.

CHAPTER II Scope of protection

Article 8

1. The protection conferred by a patent on a biological material possessing specific characteristics as a result of the invention shall extend to any biological material derived from that biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics.

2. The protection conferred by a patent on a process that enables a biological material to be produced possessing specific characteristics as a result of the invention shall extend to biological material directly obtained through that process and to any other biological material derived from the directly obtained biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics.

Anonymous said...

Uncle Wiggily,

In all fairness, the honorable Seth Waxman (a veritable KIng before the Court) was himself waxed by the Justices on the topic of "conditional sales," failing to provide even a singel example that would satisfy the Justices.

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