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June 22, 2008


After going after numerous small fry with a bazooka, on their home turf rather in the defendant's backyard as the law requires, I'd like nothing better than to see Monsanto get its behind nailed on this. But I don't see how one can argue with a straight face that seeds saved from year to year aren't covered by at least one claim of the patent, which includes claims on transfected plant cells. I give the plaintiffs an A for effort, though.

Interesting. Claim 4 of the '605 patent-in-suit reads as follows:

4. A plant cell which comprises a chimeric gene that contains a promoter from cauliflower mosaic virus, said promoter selected from the group consisting of a CaMV (35S) promoter and a CaMV (19S) promoter, wherein said promoter is isolated from CaMV protein-encoding DNA sequences, and a structural sequence which is heterologous with respect to the promoter.

Assuming the seeds all contain the construct (which is the basis for the herbicide resistance), it would appear that the seeds would infringe this claim because growing the plant would "make" more plant cells containing the construct.

Curiously, the attorney who signed the complaint appears to be a registered patent attorney, which suggests that an interesting theory may be brewing in this case. The patent bar might appreciate receiving updates on the theory of the case as the lawsuit proceeds.

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