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Guynnster
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If reconstruction is infringement it is axiomatic that new manufacture is infringement. Since anon hides behind the skirt of anonymity we will never know who we had the pleasure of proving wrong when the actual decision comes out. Sent from my iPad
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Must be bad lawyering because currently there is no exception for people manufacturing infringing goods just because they start with a few parts from a broken gadget. Reconstruction is infringing activity. Growing infringing seeds without authorization is even worse. You need to find a big exception for that one and so far no case provides one. But you can dogmatically think as you like. Sent from my iPad
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You are welcome to your opinion. But you are relying on an exception that making infringing seeds is somehow excused just because someone else purchased single use seeds upstream from the infringing activity in question. According to Mallincrodt single use restrictions are valid and consistent with patent exhaustion. You had better read this case a little more carefully and then consider the use of the term "implied license" in Univis before declaring yourself to be the only who truly understands the issues. Sent from my iPad
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You bet I noticed I used the term license because there is a whole line of patent exhaustion case that talk about patent exhaustion as creating an implied license, such as Univis. And single seed planting restrictions are eerily similar to single use restrictions in Malloncrodt, which were upheld as valid. And I have no idea why you think there needs to be an exception to the rule of patent exhaustion for self replicating organisms, which seeds aren't exactly. In fact seeds don't divide and make other seeds but they make plants. The farmer, along with soil, fertilizer, air and sun, and of course plants, is what makes new seeds. This action creates an infringing product. And unless the farmer has a license to replant them,he can't. By contract the patent may and did provide a license to use the seeds for most purposes, amount which planting them was expressly restricted. With no license the planting is an infringement IMHO. You are welcome to think otherwise and I'm sure we'll all be enlightened when the decision comes down. Sent from my iPad
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anon, to your other point, patent holders have patent rights, and buyers have implied licenses under the patent as a result of a legitimate purchase from an authorized seller. Purchasers don't ever have patent rights. Without the implied license they would be infringers. Sent from my iPad
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Hi Anon, I read a summary of Univis Lens and don't agree that it's holding is as sweeping and applicable to self replicating seeds as you have argued. At it's core is the issue of price fixing, very disfavored at the time of the opinion (1942), and the holding clearly relates to the sale of one blank to make one lens, and then the right to incorporate the one lens into any finished article. It has nothing to do with self replicating organisms that make exact copies of themselves. Thus the Monsanto case will be mostly a case of first impression. Until the decision I can express my beliefs as to what the holding ought to be because I don't agree that the holding and facts of Univis are close and exactly controlling as you seem to think. But it will be interesting to see the outcome. Sent from my iPad
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Anon, I have different opinions regarding what the court might do versus what I think the doctrine ought to be. My understanding is I'm responding to people's opinions regarding what they think the law ought to be. Therefore that is what I am providing. Seeds are not self replicating in the sense that cells self replicate. A seed does not divide into another seed spontaneously. Rather I sees only produces a plant, which must be nurtured by the farmer over a long period of time in hopes the plant will reach maturity and produce seeds. It is the combined action of the plant and the farmer that make next generation genetically modified seeds. By the time the new seeds are made the original sprouted seed is long gone. It fulfilled it's purpose and with its departure so went the licensed rights granted to the farmer to plant it. The combined efforts of the plant and farmer nurturing are like a little manufacturing plant that produces infringing product. The farmer then has the right to do anything it wants with the seeds-all except plant them. That to me is the correct result. Otherwise it's just like buying one DVD, making endless copies and then acting as if the one license for one DVD now applies to all DVDs. Licenses are not self replicating. If the one seed were destroyed while making one new seed you might have a point, much like making a legitimate backup copy of the DVD before it gets scratched up and destroyed. But one seed produces not one seed, but hundreds or thousands, albeit indirectly, much like a DVD burner can produce many copies of the DVD. So I believe one license to plant one seed mean just that. One license doesn't replicate itself into many licenses any more than one DVD purchase. Just my humble opinion as to what I thnk ought to be the result. Sent from my iPad
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Hi anon. I know it's always satisfying to proclaim victory, but the flaw in your argument is that the seed one buys from Monsanto is not the same seed that is made from the plant derived from the first seed. The first sale doctrine allows the buyer to plant, eat, or discard the seed. But it confers no rights with regard to what the farmer may do with second generation seed, which was not sold by Monsanto. Because the first sale does not apply to seeds not sold by Monsanto, planting second generation seed is an infringement, whether by the unauthorized first buyer or an unauthorized third party. Because the buyer can't plant second gen seed, a third party cannot magically have rights that the first buyer lacks. Sent from my iPad
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Hi Anon. I actually didn't forget what the sale was for. But the sale is contingent on only planting once and then using the crop for purposes that do not involve planting, which would be a new infringement because the user made the second gen seed. It was not sold by Monsanto. Therefore it is clearly an infringement to use it beyond the license that is applicable as a result of the first sale. Sent from my iPad
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I Agee that if Monsanto sells you the seed you can plant it. But I thought the issue here concerns a party to whom Monsanto did not sell seed. You cannot divorce the actual sale by the patent holder from the first sale doctrine, especially when the sale was contingent to the purchaser. Monsanto sold the seed older condition that it only be planted once. If the first sale doctrine does not shield the buyer from infringement when replanting second generation seed I don't see ow it can shield a third party. As I learned in property law: non doc qui non habit (or something like that) meaning you can't give more than you have. A thief cannot give good title to stolen property to a third party. Sent from my iPad
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These "what if" arguments are in the realm of accidental and de minimus activity. That's not Bowman's argument but your post makes for light albeit irrelevant reading.
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The notion that a good patent means contracts are never needed ignores the fact that it's easier to enforce a contract than a patent and that's why people bind licensees with all kinds of contractual limitations all the time. But the fact there are contract provisions does not mean the patent doesn't also apply. In this case it is a patent violation to make genetically modified seeds of the type claimed. Patent exhaustion applies to uses of the seed that don't involve making it. Exhaustion never excuses one from making a patented product any more than the first sale doctrine permits a book owner to copy the book. Copying is one use of a book just like planting a seed to make more seeds is one use. They both happen to be barred by copyright or patent right.
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Using and making are not exactly tied together in the case of seeds. No one plants seeds just so they can keep planting seeds into the endless future. Everyone knows the vast majority of seeds are valuable for lots of other uses, such as food or energy. The fact that Bowman could have legally used the seeds any way he want as long as he doesn't make more seeds is the proof in the pudding. He was permittined to use the patented seeds because the the patent exhaustion doctrine. However, he is not permitted to make new patented seeds on his own because that act infringes the patents. The distinctions are so clear it's hard to see how Bowman could win. The book analogy is very apt. I can buy used books all I want and then do anything I want with it: read it, tear out pages I don't like, burn it, use it as a door stop, etc., all of which are uses. The one thing I can't do is make a new book by copying the old one. It is the unique words of the book that cause the copyright violation. Likewise it is the unique genetic code of the seeds that causes the patent violation.
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Dec 5, 2012