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.”



Organic Hops and the National List

HopsSo, as I previously posted I gave a presentation on beer law to the Food Law course at Franklin Pierce.  Today, I learned something new that I would have loved to include in my presentation had I known about it.

Now, I have not fully looked into this topic but I was reading a facebook note from an organic hop grower in New Hampshire (that I also learned just got TTB approval to start a brewery) Misty Mountain Farm (I can only assume it is based on the Led Zeppelin song "Misty Mountain Hop").  Apparently Hops are on the National List in 7 C.F.R. § 205.606:

Only the following nonorganically produced agricultural products may be used as ingredients in or on processed products labeled as “organic,” only in accordance with any restrictions specified in this section, and only when the product is not commercially available in organic form.

Hops appear as (k) on the list!

What is interesting is that Peak Organic was the brewery to file the petition back in 2007 asking for Hops inclusion on the list because it is not commercially available in organic form.  In the petition Peak Organic said that they buy organic hops of a particular variety when available but organic hops of the particular varieties needed are not always available organically grown. The recommendation of the  National Organic Standards Board (NOSB) Committee was to add it onto the list.  And there it appears.

But, this past December, the American Organic Hop Grower Association (AOHGA) filed a petition to the NOSB asking for the removal of Hops from the list.

It seems that the number of styles and availability of organically grown hops has increased.  I am all for removing hops from the national list because buyers of organic beer expect their beers to be brewed with organic hops as it is such a vital ingredient in beer.

In it's public comments the AOHGA points out:

The basic question to ask is this – how many varieties of hops must be available before variety is no longer a reason for organic hops to be considered commercially unavailable? If the criteria to remove an ingredient from the list is that every variety of the crop is commercially available, then hops (along with chia) are the only crops that have been held to such a high standard.

These are the only two crops on the 606 National List, everything else on the list is a derivative ingredient. Very few crops, if any, have every variety commercially available in an organic form.

If there are not enough varieties available organically today, then how many more are needed? Five, ten? What is the number?

Every year, new varieties are showing up in the non-organic marketplace. Are these required to be grown organically before hops can be removed from the list? If so, we are dealing with a moving goal post.

Certifiers will not make this determination of the number of varieties needed, and even if they did, it would lead to different standards across the industry. We need a consistent standard. This is a question only the NOSB can answer by addressing our petition.

It seems that with patented hops, that there could possibly always be a variety or two that are not grown organically—but should that matter?  Guess I'll have to do more tasting research.


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.“


The Case for Software Patents

The Supreme Court recently granted cert in Bilski v. Doll, which most believe will change the test for patentable subject matter. Supreme Court precedent has carved out three exceptions to patentability under 35 U.S.C. § 101, these are laws of nature, physical phenomena, and abstract ideas. The quintessential law of nature is Einstein’s famous formula: e=mc^2, which is unpatentable subject matter. A patent cannot be granted that merely states this equation, as it would preempt all uses of the formula. What can -and has- been patented is the application and use of equations, for instance the Arrhenius equation in Diamond v. Diehr.

Computers and their applications have changed the world we live in. Many problems are solved by the use of the computer, from communication to commerce, and from filing your taxes to putting a man on the moon. Computers have taken over many tasks such as running your car to running voting booths. Since their creation there has been a melding of hardware and software to accomplish these goals. Many problems that computers can solve can be handled on both the hardware and software levels. Much of the power in today’s general purpose computers is that we do not need specialized hardware to perform specialized tasks. Methods that can be used to solve difficult problems thus can be solved similarly at both the hardware and software levels and so protection for one without protection for the other is meaningless. Especially since the use of these methods on a general purpose computer could require no additional hardware to perform the needed functionality.

I do not want to discuss the anti-competitive effects of patents generally, or to software patents in particular. I have not studied these in depth but will note that since software patents have been granted the United States has continued to be a hotbed for innovation in software industries having many of the largest software firms around the world. But, I also understand that software is special, there exists a vibrant open source community unlike any other field which is willing to innovate without the need for financial incentive and exclusive rights.

A problem that some have with software is that it is merely an algorithm for performing some task. And, that any task performed on a computer can be performed by a person with a pen and paper, given enough time. I both agree and disagree with that argument, as fundamentally it is correct but I believe that it is an oversimplification of what software does. Simple algorithms like converting a number from decimal to binary and back (as seen in Gottschalk v. Benson) can easily be done using either means. But, what about all those applications that are for computer specific purposes that doing them by hand does not solve the actual problem?

For instance, public key encryption such as RSA was developed as a way to securely encrypt data without first requiring the parties to have created a key to decrypt their communications. Performing the operations by hand or in our mind does not actually solve the problem where it exists, for performing operations on the internet and with computer systems. By limiting the technology to a computer (in a patent’s claims), it does not preempt uses of the algorithm in the mind or on paper, just the method’s use on the machine. This is akin to patenting a new use for a drug. Even though the drug itself may be in the public domain, this new use may be patented. Additionally, there are algorithms that make no sense without a computer system. Programs such as sending email or instant messages have no purpose without interfacing with additional hardware. For this technology to make sense, you must use additional hardware and practicing these algorithms without the use of a computer is pointless.

Software merely makes use of public domain formulas and applies them, just like traditional mechanical inventions. Take a chair for instance. It works by applying the standard laws of physics. Using a computer, or a pen and paper, the chair could be “proven” to work as well, just as a piece of software can be and just as large scale buildings and bridges are. All inventions, mechanical or software based draw upon fundamental principals that themselves are not patentable, but by applying them to solve a problem we move beyond the abstract and into the spectrum of patentability.

Novelty and obviousness also cloud the picture. When we look at the wide spectrum of patentability we see things that immediately make us cringe. Most of the things that make us cringe are because the inventions that we see on this spectrum have been done before. While difficult, it is imperative to separate patentable subject matter from fulfilling all the requirements of patentability, including §§ 102 and 103. Many of the problems that people have with the patenting of software is that the inventions are in the prior art. In this regard, the piece of technology should not be patented, but the class of technology may very fall within the prior art. I see this frequently when discussing patents like the infamous Amazon “1-Click” patent. Most who find that this patent should be invalid think that the technology is obvious.

The patent system is our way of protecting innovation. As we do not know where the next class of innovation is, or how expensive it will be to develop, we should not look to limiting the scope of patentability. Expansive scope has been a cornerstone of our system of patents and enabled the United States to have many technological advances. While not perfect, the patent system is a good trade off of exclusive rights for innovation.