Showing posts with label bowman. Show all posts
Showing posts with label bowman. Show all posts
Monday, March 6, 2017
Monsanto v Bowman A Unanimous Supreme Court Sides with Monsanto
Monsanto v Bowman A Unanimous Supreme Court Sides with Monsanto
Today a unanimous Supreme Court affirmed the Federal Circuits decision in Monsanto v. Bowman, and held that "patent exhaustion does not permit a farmer to reproduce patented seeds for planting and harvesting without the patent holders permission." A background on the case can be found in earlier posts to this blog.
The Justices seemed to see through Bowmans arguments and understand what was at stake in this case. Writing for the Court, Justice Kagan noted that it is "well-settled" that the authorized purchaser of a patented product does not acquire any right to make copies of the product, and observed that were the Court to find in favor of Bowman patents would provide "scant benefit" to companies like Monsanto, and little incentive for investment in innovation.
The Court’s decision is explicitly premised on the fact that Monsanto requires farmers to enter into a license agreement which allows them to plant the patented seeds and harvest the resulting crop for use as food or animal feed, but not to replant the seeds or sell them for replanting. In footnote 3, the Court points out that "we do not here confront a case in which Monsanto (or an affiliated seed company) sold Roundup Ready to a farmer without an express license agreement. For reasons we explain below, we think that case unlikely to arise. And in the event it did, the farmer might reasonably claim that the sale came within an implied license to plant and harvest one soybean crop."
Kagan pointed out that a decision in favor of Bowman would be entirely inconsistent with the Court’s 2001 decision in J.E.M Ag Supply v. Pioneer Hi-Bred International, in which the Court held that utility patent protection is available for seeds and plants. In J.E.M., the Court noted that that the requirements for getting a patent are more stringent than those for obtaining a Plant Variety Protection (PVP) certificate, and that the protections afforded by a patent are correspondingly greater. If the Court had sided with Bowman, it would mean that the owner of a patent would not only not be able to prevent a buyer from saving and replanting harvested seeds, but would be unable to prevent the buyer from selling the seeds, something "even a PVP certificate owner (who, recall, is supposed to have fewer rights) can usually accomplish."
Some supporters of Bowman have argued that farmers have a long-standing tradition of buying commodity grain for planting, but the Court gave short shrift to this contention. In a footnote, the Court observed that grain elevators "purchase grain from farmers and sell it for consumption; under federal and state law, they generally cannot package or market their grain for use as agricultural seed." The Court also noted that the commodity soybeans Bowman purchased were not intended for planting, but for consumption, and that Bowman himself had "conceded in deposition testimony that he knew of no other farmer who employed beans bought from a grain elevator to grow a new crop."
The Court also rejected Bowmans argument that seeds should be treated differently for purposes of exhaustion because they "self-replicate." The Court observed that Bowman was far from a passive observer, and that he had actively "made" (in the infringing sense) the copied seeds by purchasing the seeds knowing that many would be Roundup Ready, applying glyphosate in a way that culled any plants without the patented trait, saving the seeds to plant a later time, planting the beans in his field at the time he thought best, attending and treating them, including by exploiting their patented glyphosate-resistance, and harvesting the seeds, which he either marketed or saved to begin the next cycle. "In all this, the bean surely figure. But it was Bowman, and not the bean, who controlled the reproduction (unto the eighth generation) of Monsantos patented invention.”
In the final paragraph, Kagan emphasizes that the decision is limited to the facts on hand, and the holding does not extend to hypothetical situations in which an article self-replicates "outside the purchaser’s control," or in which replication might be a necessary or incidental step in using the item for another purpose. She cites to 17 USC 117, a section of the copyright statute that addresses concerns relating to software and copyright that are very analogous to the concerns about inadvertent infringement expressed by supporters of Bowman. This analogy between software copyright and DNA patent was the theme of the Amicus brief I filed in support of Monsanto, in which I particularly pointed out that concerns about unavoidable infringement could be addressed by Congress if necessary, and citing 17 USC 117 as a specific example of that approach.
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Thursday, February 16, 2017
My Amicus Brief in Bowman v Monsanto
My Amicus Brief in Bowman v Monsanto
Over the last several days, I have posted a number of briefs that have been filed by various parties in Bowman v. Monsanto. Today I filed my own Amicusbrief in the case, in support of affirmance, available here.
Here is my "Summary of Argument":
Intellectual property plays a critical role in the development of self-replicating technologies such as Monsantos genetically modified soybeans. Without some mechanism to constrain the use and dissemination of replica products, free riders would quickly flood the market with copies and impair the innovator’s ability to secure an adequate return on investment. Because of the ease with which genetically modified soybeans can be replicated by any user who comes into possession of even a single seed, whatever the source, enforceable patent protection is essential to maintain an adequate incentive for innovation.
The potential impact of this case goes well beyond Monsanto and soybeans. A decision that results in the exhaustion of patent rights in copies of self-replicating products could dramatically undermine investment in a host of promising green technologies for sustainably feeding, fueling and healing the world. It might also discourage commercialization of synthetic biology, the much heralded next iteration of the biotechnology revolution. Such a dramatic and far-reaching shift in the patent landscape is certainly not warranted, particularly on the facts of this case.
It is important to recognize that it is petitioner, not the Federal Circuit, who is seeking to create an exception to the doctrine of patent exhaustion. In essence, petitioner is arguing for an expansion of the doctrine to encompass not only patented products that have been the subject of an authorized sale, but also copies of the product - copies that were never the subject of an authorized sale. Petitioner alleges that this drastic measure is warranted because the use of Monsanto’s product inherently and unavoidably results in the production of copies, citing numerous hypothetical policy concerns. But these potential concerns are not presented in this case, involving a farmer who intentionally used and benefitted from Monsanto’s patented technology without paying for it. To the extent any of these concerns actually become an issue in the real world, they can and should be addressed in a manner that does not effectively deprive innovators of the ability to enforce their patents with respect to self-replicating technologies.
It is informative to consider how analogous concerns have been addressed with respect to another important self-replicating technology, computer software. Even though the use of many software programs inherently and unavoidably results in the production of a copy on the users computer, which would technically constitute copyright infringement, it makes little sense for software companies to sue their customers for this sort of infringement. It is simply not a problem. If the potential for an infringement lawsuit became a concern, the software company could address it by explicitly authorizing purchasers to make a copy of the software, at least to the extent that such copying is an essential step in using the software. In any event, to resolve any lingering concern, Congress took the step of amending the copyright statute to explicitly exempt authorized users of computer software from liability for producing a copy that is used solely as a necessary element of running the software.
Significantly, it has not been deemed necessary to expand copyrights first sale doctrine (copyright’s analog to the doctrine of patent exhaustion) in a manner that exhausts patent rights in copies of copyrighted software that are inherently created when the software is used. To do so would effectively strip software developers of meaningful copyright protection once a first round of copies has been sold and replicated. In the same way, and for much the same reasons, it is unnecessary to expand the doctrine of patent exhaustion with respect to self-replicating patented technologies like Monsantos seeds. To the contrary, to do so would effectively deny enforceable patent protection to many self-replicating technologies.
Congress is in the position to weigh competing interests, and if necessary enact legislation to address any unique policy concerns presented by the interplay of intellectual property rights and self-replicating technologies. It has done so with respect to computer software, and in a manner that does not deprive software producers of the ability to enforce their copyrights against free riders. It can do so with respect to patented self-replicating technologies as well. In fact, a bill is currently pending in Congress that would effectively create a compulsory license in patented seeds. Leaving aside the question of whether this would be the best approach, it illustrates that Congress is fully capable of addressing concerns expressed by petitioner and its amici without entirely stripping innovators like Monsanto of their patent rights.
Available link for download
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