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December 23, 2009

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Thanks Kevin. I wonder how Monsanto would have fared on legal grounds suing someone after expiration of the patent for breach of the contract not to save seeds that was signed during the life of the patent (a contract that the farmer had to sign if he wanted Roundup-Ready seeds). It could be argued that to enforce the contract after the patent has expired is to in effect extend the term of the patent, ergo the contract is not enforceable. I haven't check for caselaw on this question; if you're aware of any, I'd be interested to hear about it.

BTW, I think you meant to write "heels", not "heals".

Could it be that Monsanto is not as altruistic as you paint them? That they are simply being pragmatic rather than accommodating to any perceived political or social winds?

The intersection of IP and contract law can be very interesting, especially if the contracts are tied too directly to the benefits accruing from patent protection.

Without actually seeing the contract language, I might hazard a guess that the contracts simply may not BE enforceable beyond the point at which patent protection ends, and that royalty collection could not be enforced at that point either (the foreign contracts are likely different).

The rest of the article may just amount to wishful thinking and spin.

Dear Dan:

It might depend on whether the case was brought in state court or Federal court. I agree that on its face it seems that taking a tack other than the one Monsanto has chosen could be patent misuse, but there is another factor. That is, many (most?) of the farmers don't buy directly from Monsanto but from Monsanto's licensees. Monsanto could have cut off the source of Roundup Ready seeds and only provided the Roundup Ready 2 seeds after patent expiration - this would be like any other instance of planned obsolescence, and in the absence of a seed "generic" company there would really be no other place to get Roundup Ready seeds. So there could have been a de facto "extension of the patent term" without the need to litigate. Monsanto's decision avoid that eventuality.

Thanks for the comment.

Dear bread:

See my last comment. I don't (and didn't) ascribe Monsanto's actions to altruism; I think accommodating the prevailing cultural and regulatory winds is good corporate strategy. As a countervailing example, ask Myriad how not doing so is working out for them.

And, rather than "spin" we prefer "opinion." We are not representing Monsanto.

Thanks for the comment.

I enjoyed your insightful comments, particularly with regard to the political reputation of patents.

I recently retired from patent law, but had the privilege of practicing during its golden years. Patent law was in the judicial dumps in the 1970s. Progressives and then the New Deal had tarred it with the monopoly brush, leading to atrocious decisions by left-wing jurists such as William O Douglas and judicial chaos in the Federal judiciary. It was nice to ride the come-back, thanks to the Fed. Cir.

The current anti-patent trend is different. This one appears to be more about economics than politics, as the silicon and general business crowd lines up against the overreaching of recent years. If past is prologue, things will go too far, particularly with a Congress more resembling a watering hole on the Serengeti than a deliberative body, but we are still only in the early stages of this trend.

It's been a nice ride. Thanks patent law.

" and in the absence of a seed "generic" company there would really be no other place to get Roundup Ready seeds. "

There would be if I started one. 11% is nothing compared to the boost that round up ready v1.0 gave to farmers iirc. And it very well may be that one could offer the first gen much cheaper than the 2nd gen since Monsanto will be jacking up their prices. Especially if you kept your operation small.

Dear 6:

The difference is that it isn't so easy to "start" a recombinant seed company. Which is one of the distinctions between the biotech/pharma industry and IT/computers, etc. In fact, for all the skepticism Monsanto has gotten, its decision (for whatever motivation) will make a big difference to those farmers who decide not to spend the extra for Roundup Ready 2 seed and to forego the 7-11% increased yield. (Of course, Monsanto is banking on most farmers wanting the extra yield.)

Happy holidays, 6.

I agree with kevin's view. Monsanto's strategy is totally different now than what they did when EP farmers protested GM crops in the late 90's. Myriad slept on its public relations until the ACLU law suit. It is good to be proactive in this anti-patent climate, especially when Monsanto does not have good image anyway.

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