Law and Tech A weblog on Law and Technology


Organic Farmers File Suit Against Monsanto

The Public Patent Foundation (PUBPAT) filed suit on Tuesday, Marc. 29, against the biotech giant Monsanto as  a preemptive measure to protect farmers from patent infringement lawsuits.   The suit was filed in the federal district court in Manhattan on behalf of 60 family farmers, seed businesses and organic agricultural organizations. 

The case, Organic Seed Growers & Trade Association, et al. v. Monsanto is intended to protect farmers from legal action by Monsanto when their crops are contaminated by Monsanto's patented, genetically modified (GM) seed.  According to the law,  Monsanto is entitled to sue farmers  if its GM seeds are found on a farm that did not purchase a license for the seed from Monsanto, even if the crops were contaminated from seeds drifting over accidentally or though natural cross-pollination.

Once in the environment, GM seeds can potentially contaminate and destroy the organic seed for similar crops.  Organic canola has become seriously threatened as a result of contamination from GM canola.  Because Monsanto is developing genetically modified seed for many other crops, such as corn, soybeans, cotton, sugar beets and alfalfa, many fear that the future of agriculture, and thus the future of the food supply,  are at risk.

Dan Ravicher, PUBPAT's Executive Director, Lecturer of Law at Benjamin N. Cardozo School of Law in New York, and the plaintiffs' lead attorney in the case stated that PUBPAT is asking the court to declare that if organic farmers are contaminated by Monsanto's GM seed, they should not be liable for patent infringement.  PUBPAT's filing argues that Monsanto's patents on genetically modified seed are invalid because they don't meet the “usefulness” requirement of patent law, and cites evidence that genetically modified seeds have negative economic and health effects.

“Some say transgenic seed can coexist with organic seed, but history tells us that's not possible, and it's actually in Monsanto's financial interest to eliminate organic seed so that they can have a total monopoly over our food supply,” said Ravicher.  “Monsanto is the same chemical company that previously brought us Agent Orange, DDT, PCB's and other toxins, which they said were safe, but we know are not.  Now Monsanto says transgenic seed is safe, but evidence clearly shows it is not.”

Monsanto, in a statement on its blog called the suit's allegations "false, misleading, and deceptive," and went on to say,  "[i]t has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seed or traits are present in farmer’s fields as a result of inadvertent means."

Ravicher said, however, "[i]t seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”



Patenting the Google Doodle?

The Christian Science Monitor has an article informing its readers about a new patent out of the Patent Office: "Systems and methods for enticing users to access a web site" describing the Google Doodle.

Google Doodle for National Thai Elephant Day

Google Doodle for National Thai Elephant Day

The article quotes Matt Rosoff from Business Insider:

If you needed any more proof that the U.S. patent system is totally out of control, here it is: after ten years of lobbying, Google was granted a patent on Google Doodles this morning.

But Mr. Rosoff should rest easily.  The title of a patent or the invention that it is based on does not control the exclusive rights of a patent.  That would be the claims.  An infringer would have to have every element in the claim in their infringing product/process in order to be liable for infringement.  The Google patent has only 4 claims, only one of them is an independent claim, the first of which is:
1. A non-transitory computer-readable medium that stores instructions executable by one or more processors to perform a method for attracting users to a web page, comprising:

  • instructions for creating a special event logo by modifying a standard company logo for a special event, where the instructions for creating the special event logo includes instructions for modifying the standard company logo with one or more animated images;
  • instructions for associating a link or search results with the special event logo, the link identifying a document relating to the special event, the search results relating to the special event; instructions for uploading the special event logo to the web page;
  • instructions for receiving a user selection of the special event logo; and
  • instructions for providing the document relating to the special event or the search results relating to the special event based on the user selection.

So, this is not just about changing logos.  The logo must also be a link or link to search results.  So this isn't just about changing fun logos depending on the special event or day but has to be done by making the logo a link to a document relating to the special event or search results with the special event.  The image has to be animated.  The image has to be a modification of a standard company logo.  The reason this is so specific is most likely because they needed it to be to get around prior art.  At the same time, it is easy to design around.  Looking at the file wrapper, you can see that the claims as filed were numerous and broad and they got whittled away during the long prosecution including a trip to the Board of Patent Appeals and Interferences.  This does not show a system that will allow anything through.

What is interesting is the Patent Term Adjustment on the Doodle Patent: 2618 days.  That shows an incredible amount of delay on the application.  Over 7 years, with a pendency of almost 10 years.  That's certainly a sign of a broken patent system.


Invention of the Day: Fried Beer

[Ed Note: Yeah, it seems like I talk about beer a lot.  It just seems like a fun topic.]

Fried Beer

Fried Beer

As the Dallas News reports:

Booze is generating a buzz for the State Fair of Texas, as fried-alcohol dishes made the list of top new fair foods announced Wednesday.

. . .

Fried Beer is a beer-filled pretzel-like dough pocket that's shaped like ravioli. Take a bite and the beer pours out.

What's even more interesting is that in the video that accompanies the article Mark Zable, the inventor, says that he patented the process of making the fried beer and trademarked the name "fried beer."

What struck me first:  doesn't "fried beer" seem a little too descriptive, for trademark purposes, of the product (fried beer) to obtain a trademark on the principal register?  Yup.  According to filings with the PTO Zable's not even going for the principal register instead starting with the supplemental register in international class 30 "Frozen foods, namely, grain and bread based appetizers, hors d'oeuvres, and canapés."  This application has not been assigned to an examining attorney yet.

Second, in the video he mentions "you know what, I didn't figure it out, my four and a half year old did."  Meaning his four and a half year old figured out the secret process to fry the beer; "and it works."  Since this application appears to be recently filed and not published, I can't tell who the listed inventors are but if the four year old is not listed, is there a § 102(f) problem?  And if a four and a half year old came up with it, is there an obviousness problem?

So, if you're headed to the Texas State Fair be sure to try the fried beer.


In the News: Monsanto Seed Investigation

The Department of Justice has issued a civil investigative demand (CID) to request information on Monsanto's soybean business practices.  The demand is aimed primarily at Monsanto's claim that it will not block access to the GM soybean at issue once the patent expires in 2014.

Monsanto is currently under investigation by the DOJ for complaints of anticompetitive behavior involving its RoundUp Ready seed technology.

CIDs can consist of a request for the production of documents, a demand for oral or deposition testimony, service of interrogatories requiring a written response, or a combination of the above.  CIDs can be a more powerful device than subpoenas, which are limited to document request.  Through using CIDs, the government can conduct discovery before the defendent has a chance to conduct its own discovery.

Monsanto's press release on the CID can be found here.


i4i LP v. Microsoft Corp.

In a two page order filed 8/11 in the Eastern District of Texas, Judge Leonard Davis entered final judgment against Microsoft for willful infringement of U.S. Patent No. 5,787,449 (issued Jul. 28, 1998) assigned to Infrastructure for Information Inc. The patent covers a “Method and system for manipulating the architecture and the content of a document separately from each other.” What is ironic about this is that Microsoft was recently issued U.S. Patent No. 7,571,169 (issued Aug. 4, 2009) covering a “Word-processing document stored in a single XML file that may be manipulated by applications that understand XML.”

This reminds me of one of the, albeit at first confusing, maxims of patent law. A patent is a right to exclude others from making, using, selling, importing, etc. the patented invention. It does not give an affirmative right to the party to do any of those acts. The example that commonly exemplifies this is the case of an improvement. Adam makes a widget out of A and B. Bill comes along and improves upon the widget, adding element C. Both get patents on their invention. Bill is unable to fully exercise his invention because Adam holds the original patent, and Adam cannot make the improvement because of Bill.

Microsoft was ordered to pay $200M in damages, $40M in enhanced damages, post-verdict damages, as well as pre-and-post judgment interest. The court also ordered a permanent injunction, barring Microsoft from, inter alia, “selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML” during the patent term. The patent expires 17 years from the date of issue, July 28, 2015.

According to SEC filings, “[t]here are over 50 other patent infringement cases pending against Microsoft, 10 of which are set for trial in fiscal year 2010.“

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