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article imageOp-Ed: Monsanto seed patent appeal proves US govt can’t read

By Paul Wallis     Oct 10, 2012 in Environment
Verbosity is no great help to law. If you’ve read American statutes, you’ll see sentences a mile long, literally. In the case of Monsanto’s “one time only” seed licensing and patent infringements wars, the verbs have come home to roost.
Wired reports on an appeal which could have major ramifications:
The Supreme Court is weighing in on the soybean patents, agreeing to hear an appeal by a Knox County, Indiana soybean farmer who was ordered to pay $84,456 in damages and costs to Monsanto in 2009 for infringing those patents.
Farmer Vernon Bowman’s dirty deed? The 74-year-old bought soybean seed from a local grain elevator that was contaminated with the patented seed, which he used to produce beans on his 299 acres.
The case addresses the question of how far down the stream of commerce — in this instance the farming cycle — can a company control its patents, especially for products like soybeans that easily self-replicate
As commercial law, this is already pitiful beyond belief.
1. Bowman bought seed from someone else, not Monsanto.
2. How is he supposed to find out if the seller was infringing on a patent, ask each seed for ID?
3. What possible way could he have had of telling whether the seed was Monsanto property?
4. Were the seeds labelled as Monsanto products?
5. If not, why not?
6. If not, why is Bowman guilty of anything? How can he comply with terms if he doesn't know they apply?
Monsanto s advertisement
Monsanto's advertisement
Courtesy Monsanto Corp.
Enter the US government, wielding a club and grunting
Now comes the farce de resistance, supplied thoughtfully by the US government, which tells the Supreme Court that it’s much better able to do the court’s job than the court.
In a 20 page document, the US government made a submission (PDF doc) to the court which includes several pre-GM technology precedents, some previous Monsanto cases, and quotes a series of irrelevant incidents not related to the purchase of patent-infringing materials from a third party. Meaning the examples are quite meaningless in this case.
It then brilliantly cites on page 12:
The court of appeals correctly held that, even if respondent’s patent rights in the commodity seed have been exhausted, petitioner still had no right to make a newly infringing article by planting and harvesting that seed.
1. As explained above (see p. 7, supra), the Patent Act grants a patent holder separate rights to exclude others from making, using, offering for sale, and selling a patented invention. An authorized first sale of an article embodying the patented invention exhausts the patentee’s rights to use and sell that patented article.
The patent-exhaustion doctrine, however, has never encompassed the making of new infringing articles.
Well, duh. It doesn’t refer to other people selling infringing seed either, idiots. Nor does it hold a recipient of an infringing product guilty of anything, as far as I can see.
So an unknowing recipient of “stolen” goods, in this case, is held responsible for the actual theft as if it were an intentional committing of a crime.
The insults to the court’s intelligence gather steam:
To be sure, planting soybean seed in order to produce a new crop is naturally described as “using” the seed that was planted. Contrary to petitioner’s contention, however, the planting and harvesting of soybeans also constitutes the “making” of newly infringing seed.
Nice to see the US government has found a use for itself as an advocate for a corporation in a civil case (who needs the Constitution, anyway?), but again, any relevance to the fact this guy bought seed from someone else doesn’t rate a mention.
Most vegetables can follow a logical sequence, but not, apparently, the US government.
Then the case for the prosecution- The government isn’t supposed to be party to court decisions, for those wondering- winds up with this slap in the face for the Supreme Court complete with a little ad for the product:
First, Congress is better equipped than is this court to weigh petitioner’s concerns against the countervailing considerations that support continuing patent protection in this context. If petitioner’s view were adopted, the first authorized sale of a single Roundup Ready soybean would extinguish all of respondent’s patent rights to that soybean and to its progeny.
One interpretation of this foray into totally missing the point would be that the court itself is unnecessary. The license, incidentally, specifically excludes progeny. Monsanto isn’t claiming rights over progeny, because those progeny aren’t allowed to exist at all under the single use terms. This is a standard term of all Monsanto products of this type.
It doesn’t matter if Bowman bought seeds or a stolen genetically modified tractor, he didn’t have any way of determining his liabilities in purchasing the product. He went to the store and bought something, and now he’s being sued for carrying out a normal business transaction.
The usual assumption is that business purchases are done in good faith. Were the seeds Bowman bought clearly labelled as Monsanto products, and clearly subject to Monsanto license terms? Even Monsanto apparently didn’t bother to check up or do anything about people actually selling their seeds, (which I would have thought was much more of an infringement of their patent), just the poor bastard that bought seeds obviously not knowing what they were.
Apparently not.
A word of advice to the US government- You’re way out of practice making laws, and certainly out of practice interpreting them in context with actual cases. The Supreme Court exists for a reason, and it might be an idea if you found out what that reason is.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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