Intellectual Property Center, LLC

Supreme Court Finds Farmer Guilty of Patent Infringing for “Making” Monsanto’s Patented Seed

Bryant — Tue, 14 May 2013 22:25:48 +0000

On Monday, a farmer was found guilty of patent infringement, essentially for planting soybeans. The farmer lawfully purchased genetically modified soybeans, planted them in the ground, and then harvested the resulting seeds. The farmer claimed he was not guilty through what the court characterized as a “blame the bean” defense, stating that he did nothing to “make” what would be considered the patented soybean. The farmer’s patent attorney also argued that the farmer’s conduct was permitted under the patent exhaustion doctrine, which allows individuals to resell or use products they have lawfully purchased. However, both arguments failed. The Court reasoned by considering the aggregate of the farmer’s actions that led to the creation of the patented soybean, all of which were done without Monsanto’s permission. While the farmer may not have actually created the seeds (that was an act of nature), he was by no means a passive observer – conduct the Court found to be patent infringement. In sum, the Court ruled that farmers cannot use Monsanto’s patented genetically altered soybeans to create new seeds without paying the company a fee.

In this case, the farmer purchased seeds directly from a grain elevator, a grain elevator the farmer believed included the genetically modified soybeans. He then planted those seeds in the ground, sprayed the sprouting plants with Round Up, and harvested the seeds from the surviving plants. In essence, the Court found that when farmers buy Monsanto’s patented seeds, they are prohibited from harvesting seeds grown from the resulting crop. This forces the farmers to buy new seeds every year instead of using the next generation’s seeds, which inherit the resistance to the herbicide Roundup, the crux of Monsanto’s patented seeds.

While, it could be argued that the Court’s ruling goes against the prohibition on patenting naturally occurring processes, the Supreme Court chose not to address the issue of whether Monsanto’s patent covers patentable subject matter. Either way, the the ruling will have limited implications as the Court stated their holding only applies to the case at hand. Of the few effects, the most notable is how Monsanto will undoubtedly attempt to use the ruling in its other patent infringement lawsuits against other farmers who have harvested the genetically modified soybeans from crops growing freely along the road. However, due to the Court’s limitation those cases may be distinguished from this as the self-replication of the product is likely occurring outside of the purchaser’s control.

Apple Registers its Retail Store for Trade Dress Protection

Arthur — Fri, 19 Apr 2013 19:04:09 +0000

In another continuation of Apple’s efforts to promote its intellectual property, including its trademark, Apple has now received trade dress protection for the design of the Apple Store. As many readers may remember from our blog on Magic Apples, In 2011 there were over 22 stores opened up in Asia with a nearly identical look and feel to the Apple Store. Some of these stores had similar furniture, similar signage and employees wore similarly colored shirts. In fact some of the employees at these stores actually believed they worked for Apple based upon the similarities. These stores also sold knock-off Apple products and some competitor products, as well as Apple branded products. It should be no surprise that many of the customers believed they were purchasing authentic Apple products. Maybe as a reaction to those knock-off stores as well as other competitors retail stores, such as Microsoft and Samsung, Apple has now registered its Apple Store for trade dress protection.

Trade dress protection is a form of trademark protection and protects the “look and feel” of something. However, trade dress protection is broader than traditional trademark or service mark protection. It protects more than an insignia, a word or phrase. Trade dress protection extends to the tangible and intangible aspects of the object. For example, it may be used to protect a building shape, the layout of a building or the color palate around the room, including various signage. It may also extend to the intangible aspects such as the Gap or Old Navy television commercials. To the extent an object provides a distinctive, non-functional “look and feel” it may be protected from confusing use by competitors.

The U.S. Trademark Office has just registered two Apple Store images based upon their presumably unique layout. One federal trademark registration is directed towards a colorized version of the store, and another is directed towards a non-color representation of the Apple Store.

While registration is not required to protect your trade dress rights, registration certainly has many benefits. However, even though we have experience in trade dress protection and litigation, one still has to wonder is Apple really the first store to layout its store in the manner illustrated in the picture or did they just copy someone else’s design…

In any event, it will be interesting to watch as Apple continues to enforce its intellectual property rights both within the U.S. and internationally, including enforcement of its patent and trademark rights around the world and if after reading this blog you decide you too would like to protect your trade dress, feel free to contact us.

Supreme Court Set to Decide Whether Human Genes Can Be Patented

Arthur — Fri, 12 Apr 2013 05:13:53 +0000

The U.S. Supreme Court will hear oral arguments next week to decide whether human dna is patentable. Under U.S. Patent laws, to be elligible for patent protection, the invention must be directed towards patentable subject matter. Humans and other naturally occuring items are excluded from patent protection. Therefore the U.S. must decide if patent protection can extend to human dna. http://www.scientificamerican.com/article.cfm?id=supreme-court-set-to-hear-arguments-on-whether-human-genes-can-be-patented

Fallout from Apple Vs Samsung: Design patents become Cinderella of the IP world

Arthur — Thu, 11 Apr 2013 01:50:15 +0000

Fashion’s Apple Vs Samsung: Design Patents are changing how Branded companies are protecting and enforcing ip rights against copycats. http://www.forbes.com/sites/clareoconnor/2013/04/10/fashions-apple-vs-samsung-spanx-patent-war-could-change-how-brands-fight-copycats/

New law Brings Rush to file Patents

Arthur — Sun, 07 Apr 2013 11:48:56 +0000

On the eve of the new patent law changes, most law firms around the country were scrambling to file patent application s before the U.S. switched to the new first to file system, bombarding the Patent Office with a record number of applications, according to data from the agency. Preliminary numbers from the USPTO show it received 13,888 patent applications on March 15, the second-highest application total for a single day. The only day where more applications were received was June 7, 1995, also the day before a new patent law came into effect. “It was like hell week,” said Christopher Daley-Watson, a partner with Perkins Coie, whose intellectual property practice filed 558 patent applications for its clients in March, 211 of them on March 15. In comparison, the firm filed 187 applications for the same month in 2012. The “old” law reviewed patents under a system known as first-to-invent, which granted the patent to the entity that could prove it came up with the invention first. As of March 16, first-to-invent was replaced with the more narrowly drawn first-to-file system, which grants patents to the first entity to apply. Some proponets of the new system claim that the first-to-file system is a more efficient way of filing, others say that the new system discourages innovation from smalller entities who often have to balance the need to file with the liklihood of commercial success. The old system favored fairness, and we went for fairness. Now we’re like every other country and the apokucant must race to the patent office to try and protect their invention. At the Intellectual Property Center we saw a boost from the switch in filing systems. Patent filings rose over 100 percent in March over the same period a year ago, which came within the two weeks before the first-to-invent system was phased out. Under the new law, their may be a higher frequency of non-provisional patent applications. Under the old law, the USPTO had enacted a provisional/non-provisional process to harmonise the U.S. and foreign systems. An inventor used to be able to file an incomplete, provisional patent and then 12 months later, after some further refinement, file a complete, non-provisional patent application. The new law draws into question the benefit of an incomplete, provisional patent because it would lack the complete description of the invention as may be required under the first to file system. Going forward, if you would like to consider obtaining a new patent under the new law, we stongly encourage scheduling a meeting as early as possible so that we can get to know your inventions and goals. It has been reported that on average, the patent office receives about 10,000 utility patent applications per week.

Apple’s newly published patent application includes a central awareness processor for anticipating your actions. The handheld ios device may include additional sensor points for determining repetitive actions. While, it sounds cool it may just be another way Apple is going to be gathering user data.

Arthur — Sun, 07 Apr 2013 10:55:22 +0000

Apple patent hints at its plans of making iOS devices capable of anticipating your actions http://www.etechmag.com/2013/04/06/apple-patent-hints-at-its-plans-of-making-ios-devices-capable-of-anticipating-your-actions.html

Verizon may Share “Six Strikes” Alerts for BitTorrent Lawsuit

Arthur — Wed, 03 Apr 2013 05:00:29 +0000

In light of the new six-strike, copyright offender system which the U.S. passed into law back in February, Verizon is being asked to share its data in repeat bit torrent users. See http://feedproxy.google.com/~r/Torrentfreak/~3/4_fz1CkmOOw/

Patent License Agreements – Pay to Delay

Arthur — Tue, 26 Mar 2013 02:30:47 +0000

Today, the Supreme Court will hear oral arguments in a patent related dispute related to whether a drug company should be allowed to pay its competitors to keep their drugs off the market. Some refer to these arrangements as a “pay to delay” payment, and believe it to be a valid settlement agreement. Others view it as an anti-competitive agreement that harms consumers. For the first time since this form of settlement appeared nearly a decade ago, the Supreme Court will determine its legality.

A settlement agreement between a band name pharmaceutical company and a generic pharmaceutical company is the basis of the litigation brought by the Federal Trade Commission (“FTC”) on behalf of the United States Government. The settlement agreement in question was initiated when a brand name pharmaceutical manufacturer, Solvay, paid a generic drug manufacturer to delay entry of its testosterone hormone supplement, into the market place for 9 years.

Arguably, Solvay’s patented product AndroGel is based upon an improvement patent, with a slightly different formula from an old drug with an expired patent. Some say the improvement patent should have never issued because the slight changes in the formula were not enough to warrant patent protection and because the original patent covering testosterone supplements expired years ago.

Solvay’s sales of AndroGel exceed $400 million annually. The generic drug companies threatened that their generic versions of the testosterone products would be six times cheaper. As the introduction of the generic drug was imminent, Solvay entered into a settlement agreement in which they paid $42 million dollars to a generic drug manufacturer to prevent the sale of the generic product in competition with AndroGel.

The FTC is challenging the settlement agreement as being anti-competitive in that it violates the nation’s anti-trust law by preventing competition in the marketplace. Both generic and branded drug manufacturers view the settlement agreements as a contractual arrangement within their constitutional rights. They believe if Congress had intended the prevention of such conduct, then Congress should handle the issue, not the FTC.

Today’s oral arguments will help define the proper scope and permissibility of settlement agreements stemming from patent infringement disputes.

Copyright First Sale Doctrine Applies Internationally

Arthur — Mon, 25 Mar 2013 23:43:35 +0000

On March 19, 2013, the Supreme Court issued the much-anticipated decision in Kirtsaeng v. John Wiley & Sons, Inc., holding 6 to 3 that Copyright First Sale Doctrine applies to “foreign-made works, and that the authorized manufacture and sale of a copyrighted work abroad exhausts the copyright owner’s rights to control the distribution of the work in the United States.”

The Copyright First Sale Doctrine is an exception to the rights granted under the U.S. Copyright Laws (see 17 U.S.C. § 106). The Copyright Laws grants the copyright owner certain exclusive rights, including the right “to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership.” 17 U.S.C. § 106(3)). However, the Copyright Laws also impose certain exceptions including the first sale doctrine, which states that the copyright owner can not prohibit the resale of a produce which was lawfully purchased. See § 109(a).

An exception to the first sale exhaustion doctrine has been related to the importation of foreign products. In the case before the Court, it was related to textbooks which were lawfully made and purchased overseas. The international textbooks were purchased overseas at a cheap discount and imported back into the U.S. for sale to students. The publisher was opposed to the importation claiming it was in violation of the copyright owner’s distribution rights under the Copyright Laws. 17 U.S.C. § 602(a) governs importation of a copyrighted work into the United States. The publisher argued that the importation prohibition states that whoever imports into the United States, without the copyright owner’s authority, “violates the owner’s exclusive distribution right” under § 602(a)(1) of the Copyright Act.

Relying on its decision in Quality King, the Court held that the first sale doctrine applies to foreign-made works, and that the authorized manufacture and sale of a copyrighted work abroad exhausts the copyright owner’s rights to control the distribution of the work in the United States.

While the impact of the Court’s ruling is still being evaluated, domestic copyright holders who do business solely in the U.S. should not be impacted. In addition, if a business is doing substantial production, sales or manufacture of copyrighted goods overseas, then it may be worthwhile to investigate whether a license would be applicable. Based on the Court’s ruling, even though the Copyright Laws may allow for the unlimited importation of internationally produced or sold copyrighted materials a valid license maybe utilized to prohibit the same. If you are interested in understanding the impact of the Courts ruling and your rights, you should schedule a meeting with one of our attorney’s to discuss this case and your rights.

U.S. Supreme Court decides Patent Case involving Farmer’s Ability to Grow Crops

Arthur — Tue, 19 Feb 2013 23:42:49 +0000

The U.S. Supreme Court heard oral arguments today in a patent case which demonstrates the tension between farmers and scientists in which the farmers are trying to defend their historical centuries old use of naturally grown plants in contrast to scientists attempts to limit this naturally occurring practice.
In Bowman v. Monsanto the Supreme Court considers whether a patent holder’s rights extend over a product produced beyond the first sale. The Court’s ruling could impact not only the genetically modified seed industry, but also other industries including computer software to auto parts. On the flip side, some are worried that by reducing the protection offered under patents could stifle innovation, something which is truly Made in America.
“Why in the world would any [manufacturer] pay any money to invent a seed … when anyone could just grow more?” asked Chief Justice John G. Roberts Jr. during Tuesday’s argument.
Sowing the Seeds of Infringement
The case stems from Vernon Bowman’s purchase of genetically modified “Roundup Ready” soybean seeds from Monsanto Co. a patent owner which holds many patents on self-replicating and herbicide-resistant soybeans. Instead of selling its seeds, Monsanto licenses them to farmers to use so long as the farmers promise not to save or replant later produced seeds which are naturally obtained after the first harvest.
Rather than purchase the soybeans from Monsanto, Mr. Bowman purchased the seeds from a commodity market avoiding the contract limitation imposed by Monsanto. After Bowman planted a crop he harvested and saved some of the seeds back to the commodity market. As a result, Monsanto sued Bowman for patent infringement, rather than breach of the Monsanto limited license agreement.
Under traditional patent laws, a patent holders’ rights are exhausted after their initial “lawful” sale of the patented product. Because of this, Bowman argued that Monsanto’s patent claims were exhausted and could not be enforced against a later lawful purchaser who purchases lawfully made patent product. But the district court disagreed, as did the Federal Circuit, which held that Bowman could not use patented goods to create new infringing products.
The Supreme Court granted certiorari and today heard oral arguments in the case. Because of the potential downstream impact on many industries which impose limitations on patented products beyond the initial sale, the case has drawn interest from a variety of consumer groups and manufacturers from auto parts manufacturers to software companies such as Microsoft. A ruling is expected before the Court’s term concludes in June.

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