Archive for the ‘Ag Biotechnology’ Category

Patentability Issues for Plants in the EPO

Monday, July 15th, 2013

While this decision from the EPO Technical Board of Appeal raises more questions than it answers, it does a very good job of framing the issues and uncertainty regarding the patentability of plants in the EPO. The claim was to a broccoli plant containing elevated levels of certain anti-cancer compounds. The plant was claimed in product by process form that recited only conventional breeding and selection step. However, while plant varieties are not patentable in the EPO, and conventional plant breeding methods are not patentable either, the question remains as to whether improved plants that are not claimed as varietals but that are made by conventional breeding methods are patentable.

You can find a guest post on this decision “Broccoli Reheated — Second Referral to The EPO Enlarged Board of Appeal” by Dr. Stefan Danner below.

07 13 Patentability of plants

Supreme Court Decides Bowman v. Monsanto for Monsanto

Wednesday, May 15th, 2013

On May 13th, a unanimous Court found that the doctrine of patent exhaustion “does not allow the purchaser to make new copies of the patented invention.” [A copy of decision is at the end of this post.] In this case, the patented invention was a soybean seed obtained from a plant that had been genetically altered so that it is resistant (“survives exposure”) to the herbicide glyphosate. I know that this is “yesterday’s news” by now, but I need a break from plumbing the depths of CLS v. Alice, so I thought I would offer a few observations. (I also did posts when the Fed. Cir. ruling came down, when the Supreme Court granted cert. and when oral argument was heard.)

At least this was a “patent friendly” decision, and the Court even spent some time discussing its relationship with J.E.M. v. Pioneer Hi-Bred, 534 U.S. 124 (2001) in which a divided Supreme Court held that utility patents were available for plants, despite the protections offered by Plant Variety Protection Act Certificates (PVPA certificates). Slip op. at 7. In that decision, the Court held that “only a patent holder (not a certificate holder) could prohibit ‘[a] farmer who legally purchases and plants’ a protected seed from saving harvested seed ‘for replanting’…(noting that the Patent Act, unlike the PVPA contains ‘no exemptio[n]’ for ‘saving seed’).”

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Supreme Court Hears “Replicant Soy Bean” Appeal

Wednesday, February 20th, 2013

Since I did a perfectly concise, coherent even, post when the Supreme Court granted cert. in Monsanto v. Bowman back in October, I don’t really have a lot to add. The bloggers and news services have paid a lot of attention to this appeal as if, somehow, the fate of transgenic plants was in the balance but, from what I’ve read of the oral arguments, Monsanto has the upper hand. Oddly, this appeal called to mind Aro Mfg. Co. v. Convertible Top Replacement, 366 U.S. 336 (1961), which involved “repair” of a fabric convertible top vs. “replacement” of the entire mechanism as well as the fabric. The Supreme Court found in favor of the defendant, but the ruling would provide ample precedent to hold that Bowman in fact infringed when he replicated a second generation of Monsanto’s glyphosate-resistant soy beans without a license:

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Supreme Court to Review Monsanto v. Bowman

Monday, October 8th, 2012

On Friday, Oct 5th, the Supreme Court granted cert. to review the Fed. Cir.’s decision in Monsanto Co. v. Bowman, App. no. 2010-1068 (Fed. Cir. September 21, 2011). (A copy of the decision is at the end of this post.) Bowman, a soybean farmer, had purchased commodity (mixed -source) seed from a local grain elevator to plant as a “second crop” since he did not want to pay the higher cost that a licensed seed grower would charge. All sales to growers of the Monsanto seeds in question – these particular seeds are transgenic in that they carry, and pass on, the trait of resistance to glyphosate – are subject to a “standard form limited use license,” the “Monsanto Technology Agreement,” that licensed the two patents-in-suit to growers under the conditions, inter alia, that they would use the crop for planting only in a single season, not to resell the seed, and not to save seed for replanting. The growers can sell the seed to grain elevators as a commodity – e.g., for use as food or feed.

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