Last Sunday’s episode of “The Good Wife” featured a Christian mediation between a farmer (Robert Joy) sued by a Pioneer-like company, represented by the actor Richard Thomas, for saving GMO corn seed for replanting. The facts were a mash-up of J.E.M. Ag Supply v. Pioneer Hi-Bred., 534 U.S. 124 (2001), and Monsanto Canada v. Schmeiser, 1 S.C.R. 902 (2004). In the former case, JEM was selling Pioneer’s hybrid seed that had been “saved” by farmers from a previous crop of the seed, in violation of the shrink wrap-type license on the original Pioneer seed they had purchased at JEM. In Monsanto-Canada, a farmer saved and replanted glyphosate-resistant canola seed from a field he claimed was contaminated by “GMO” pollen from neighboring fields.
Archive for the ‘Ag Biotechnology’ Category
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.
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’).”
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: