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PATENTS & SEEDS: Monsanto wins lawsuit against Indiana (USA) GE soybean farmer



                                  PART 1


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TITLE:   MONSANTO WINS LAWSUIT AGAINST INDIANA SOYBEAN FARMER

SOURCE:  Thomson Reuters, USA

AUTHOR:  Carey Gillam

URL:     http://www.reuters.com/article/2011/09/21/monsanto-lawsuit-idUSS1E78K0V120110921?feedType=RSS&feedName=everything&virtualBrandChannel=11563

DATE:    21.09.2011

SUMMARY: "Monsanto Co., the world?s largest seed company, has prevailed in another lawsuit against a U.S. farmer, earning a ruling from a federal appeals court that protects Monsanto?s interests even when its patented seeds are sold in a mix of undifferentiated ?commodity? seeds. The U.S. Court of Appeals for the Federal Circuit in Washington issued its ruling Wednesday, affirming the lower court decision that favored Monsanto. The St. Louis, Mo.-based company sued Indiana soybean farmer Vernon Bowman in 2007 accusing Bowman of patent infringement for planting and saving seeds that contained Monsanto?s genetically altered Roundup Ready technology even though Bowman said he bought those seeds as part of a mix of commodity seeds."

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MONSANTO WINS LAWSUIT AGAINST INDIANA SOYBEAN FARMER

- Case involves second-generation commodity soy seeds

- Farmer bought mix of unmarked seeds from grain elevator

- Monsanto says affirms intellectual property rights

Sept 21 (Reuters) - Monsanto Co., the world?s largest seed company, has prevailed in another lawsuit against a U.S. farmer, earning a ruling from a federal appeals court that protects Monsanto?s interests even when its patented seeds are sold in a mix of undifferentiated ?commodity? seeds.

The U.S. Court of Appeals for the Federal Circuit in Washington issued its ruling Wednesday, affirming the lower court decision that favored Monsanto.

The St. Louis, Mo.-based company sued Indiana soybean farmer Vernon Bowman in 2007 accusing Bowman of patent infringement for planting and saving seeds that contained Monsanto?s genetically altered Roundup Ready technology even though Bowman said he bought those seeds as part of a mix of commodity seeds.

Commodity seeds come from farms that use Roundup Ready technology as well as those that do not without differentiation. No licensing agreements are required with the sale of such seeds.

Monsanto restricts grower use of its licensed Roundup Ready seed to a single commercial crop season. Roundup Ready seeds tolerate spray treatments of Monsanto?s Roundup herbicide.

The court found that while the technology agreements Monsanto requires growers to adhere to forbids farmers from selling the progeny of Roundup Ready seeds, those agreements do not extend to second-generation seed.

In fact, Monsanto authorizes the growers to sell their second-generation seed to grain elevators as a commodity and does not require restrictions on grain elevators? subsequent sales of that seed, the court said.

But that still does not give growers a green light to replicate Monsanto?s patented technology by planting it in the ground to create ?newly infringing genetic material, seeds and plants,? the court found.

?The attempt to limit the applicability of patent rights was again squarely rejected by the court,? Monsanto said in a statement.

In Bowman?s case, he planted Roundup Ready seeds as his first-crop in each growing season from 1999-2007 and did not save seed in compliance with licensing agreements. But he also purchased commodity seed from a local grain elevator for a late-season planting, or what is known as a ?second-crop.?

The farmer applied glyphosate to his second soybean crops and was able to identify herbicide-resistant plants, from which he then saved seed for subsequent years of second-crop planting, according to the court documents.

Bowman argued that Monsanto?s patent rights were exhausted with respect to Roundup Ready soybean seeds that are present in grain elevators as undifferentiated commodity seed.

But the court still found that infringement of Monsanto?s patent occurred and affirmed the award of damages to Monsanto, which a lower court set $84,456.

Mark Walters, a lawyer for Bowman, said he was disappointed in the court decision, which he said conflicts with ?over a century of Supreme Court law on patent exhaustion.? Bowman may make a further appeal, he said. (Reporting by Carey Gillam; Editing by Bob Burgdorfer)



                                  PART 2

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TITLE:   BIG WIN FOR MONSANTO IN SEED PATENT CASE

SOURCE:  The National Law Journal, USA

AUTHOR:  Sheri Qualters

URL:     http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202516562602&slreturn=1

DATE:    22.09.2011

SUMMARY: "Monsanto Co. has scored a win for its genetically altered seed patents at the U.S. Court of Appeals for the Federal Circuit. [...] In a Sept. 21 unanimous ruling, the court denied a farmer?s right to replant seeds obtained from a grain elevator that weren?t sold under a Monsanto license agreement but contained Monsanto?s patented technology. It also tackled the concept of patent exhaustion, which is when a patent owner no longer owns the rights to a patented product because the owner has sold the item in an unrestricted sale."

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BIG WIN FOR MONSANTO IN SEED PATENT CASE

Monsanto Co. has scored a win for its genetically altered seed patents at the U.S. Court of Appeals for the Federal Circuit. The decision was also a victory for Wilmer Cutler Pickering Hale and Dorr, including leading appellate advocate Seth Waxman, the chairman of its appellate and Supreme Court practice group in Washington.

In a Sept. 21 unanimous ruling, the court denied a farmer?s right to replant seeds obtained from a grain elevator that weren?t sold under a Monsanto license agreement but contained Monsanto?s patented technology. It also tackled the concept of patent exhaustion, which is when a patent owner no longer owns the rights to a patented product because the owner has sold the item in an unrestricted sale.

In Monsanto Co. v. Bowman, the Federal Circuit upheld a September 2009 summary judgment ruling by Judge Richard Young of the Southern District of Indiana. That ruling found that Vernon Hugh Bowman infringed two patents owned by Monsanto, an agricultural biotechnology company, for genetically altered soybean seeds. Young awarded Monsanto $84,456.20.

The patents are for Roundup Ready soybean seeds, which resist herbicides such as Monsanto?s Roundup product. Crops grown from the seeds can withstand herbicide spraying, which makes it easier for the farmers to control weeds.

Growers who buy the patented seeds from Monsanto or its licensed producers must abide by an agreement barring them from selling the progeny of the licensed seeds, known as ?second-generation seeds,? for planting.

The agreement does allow growers to sell second-generation seeds to local grain elevators as a commodity ? such as for feed. Grain elevator operators sell commodity seeds, which are a mixture of undifferentiated seeds from many sources.

According to the opinion, Bowman, a grower in Knox County, Ind., bought some of Monsanto?s seed from licensee Pioneer Hi-Bred during the years 1999 through 2007.

In June 1999, Monsanto sent Bowman a letter notifying him of its patents covering the soybean seeds, which stated that the ?[p]lanting of seed that is covered by a patent would be making the patented invention and using the patented invention.? In 2002, Pioneer required Bowman to sign Monsanto?s agreement. In accordance with the agreement, Bowman used the Monsanto seeds for the first crop of his growing season in 1999 through 2007, and he did not save seeds from those plants.

But Bowman also bought commodity seed from a local grain elevator to plant as a second crop in 1999. He saved seeds harvested from the second crop to replant second crops in later years, and continued to buy commodity seeds for each year?s second crop as needed.

Monsanto sued Bowman for patent infringement in October 2007 because the progeny of the commodity seeds contained its patented seed technology.

Judge Richard Linn authored the ruling, joined by judges William Bryson and Timothy Dyk.

The Federal Circuit agreed with the district court that patent exhaustion does not apply to Bowman?s second-crop plantings. ?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,? Linn wrote.

The court found that while farmers like Bowman may use commodity seeds as feed or for other purposes, ?they cannot ?replicate? Monsanto?s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.?

The decision is completely in line with long-standing precedent, said Waxman, one of the lawyers at Wilmer who represented Monsanto. ?It underscores [that] meaningful patent protection for Monsanto?s self-replicating technology is essential to the advances in biotechnology that the overwhelming number of American farmers want,? Waxman said.

The ruling is an important protection for innovation, not just for Monsanto, Waxman said. ?It?s [good for] anybody who is innovating and producing useful new inventions in the area of biotechnology generally and self-replicating biotechnology in particular.?

Lawyers at Thompson Coburn of St. Louis also represented Monsanto.

In a statement, Monsanto?s associate general counsel for litigation, Kyle McClain, said that the key issue in the case ?was whether Monsanto?s intellectual property rights extend to second generation seeds.?

?The decision by the Federal Circuit Court of Appeals reaffirmed important intellectual property rights of significance to the entire agricultural biotechnology industry,? McClain said.

Mark Walters, a Seattle partner at Frommer Lawrence & Haug who argued for Bowman at the Federal Circuit, said he and his client are weighing their options, including filing a petition for an en banc re-hearing.

?We are disappointed that the decision follows the line of cases [that started with the Federal Circuit?s 1992 decision Mallinckrodt Inc. v. Medipart Inc.], which stand in conflict with over a century of Supreme Court law on patent exhaustion,? Walters said.

Mallinckrodt reversed a district court ruling that a patent holder?s restriction on reuse was unenforceable under the patent law.



                                  PART 3

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TITLE:   WHEN MONSANTO?S PATENTS EXPIRE

SOURCE:  Patent Law Blog, USA

AUTHOR:  

URL:     http://www.patentlyo.com/patent/2011/09/when-monsantos-patents-expire.html

DATE:    26.09.2011

SUMMARY: "The Federal Circuit has again affirmed that Monsanto?s genetically modified seeds patents can be used to stop farmers from saving and replanting the GM seeds. Here, the particular issue involved patent exhaustion, and the court ruled that the authorized purchase of seeds did not include the right to replant the second generation. The legal theory here follows the same notion of copyright in book buying."

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WHEN MONSANTO?S PATENTS EXPIRE

Monsanto Co. v. Vernon Bowman (Fed. Cir. 2011)

The Federal Circuit has again affirmed that Monsanto?s genetically modified seeds patents can be used to stop farmers from saving and replanting the GM seeds. Here, the particular issue involved patent exhaustion, and the court ruled that the authorized purchase of seeds did not include the right to replant the second generation. The legal theory here follows the same notion of copyright in book buying. When someone purchases a book, they do not typically also receive a right to make further copies. There are some debatable differences ? Monsanto?s soybeans are alive and have the ability to self-replicate. However, the court previously rejected those arguments. Monsanto?s two patents at issue in this case are U.S. Patent Nos. 5,352,605 (??605 Patent?) and RE39,247 (??247 Patent?). The ?605 patent expires in October 2011, and the ?247 patent patent expires in 2014. As the Bowman and Scruggs cases suggest, Monsanto has alway aggressively enforced these patent rights. However, M
 onsanto has announced that once the patents expire, it will no longer enforce its existing technology licenses. At that point, farmers will be free to save their GM soybean seeds and replant them at will. In addition, the expiration of the patents also allows others to manufacture other Roundup Ready organisms. Obviously, the point here is that the patents? expiration will likely further expand the use of GM organisms. Up to now, Monsanto?s profit motive has seemingly helped organic and non-GM producers in their quest to keep their seed lines separate. Patent expiration will dramatically change this status quo.