From phm@a2e.de  Wed Dec 12 05:33:00 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Wed, 12 Dec 2001 06:33:00 +0100 (CET)
Subject: [Patents] Supremes Uphold Seed Patentability
In-Reply-To: <3C163D77.E6137C2A@RealMeasures.dyndns.org>
Message-ID: <Pine.LNX.4.33.0112120621580.6564-100000@mulix.oas.a2e.de>

> High Court Says Seeds Can Be Patented,
> In Ruling Beneficial to Biotech Industry

When the BGH ruled in 2000 that trivial calculating rules could be
patentable, a Financial Times journalist also titled "in ruling beneficial
to software industry".

> The U.S. Supreme Court, in a ruling beneficial to the crop-biotechnology
> industry, upheld the patentability of plants and seed.

Let's see who the WSJ quotes to back up the bold assertion that this is
beneficial to the crop industry.

> The 6-2 opinion, which was closely watched by intellectual-property
> experts, keeps intact hundreds of utility patents granted by the U.S.
> Patent and Trademark Office over the past 16 years to companies such as
> Monsanto Co. and DuPont Co.'s Pioneer Hi-Bred International Inc. unit.
> The U.S. biotechnology industry has spent billions of dollars to
> genetically modify crops. Without patents on these plants, industry
> officials argue, companies wouldn't be able to protect their
> modifications from copycats. "The biotech industry won't invest in crops
> unless they have patent protection," said Janice Mueller, a professor of
> patent law at John Marshall Law School in Chicago.

A professor of patent law, high priest of the patent faith, like those in
Munich and elsewhere who are adamant to extend patent inflation to every
realm and who firmly believe that patents are beneficial, no matter what
the evidence.

> The opinion, released Monday, upset populist farm groups and

And the opponents of the patent church are of course populists and "anti
biotech".

> antibiotechnology groups hoping to roll back parts of patent law. Before
> the biotech era, Congress went to some lengths to keep plants in public
> hands: Farmers could save some of their crop for use during the next
> planting season, even though it had inherited special characteristics
> developed by their seed supplier. Also, seed companies couldn't stop
> competitors from using their wares in research.

> The 1985 decision by the patent office to issue utility patents on seed
> is strangling those practices. "The Supreme Court decision is bad for
> farmers," said David Moeller, a staff lawyer for Farmers' Legal Action
> Group, a not-for-profit St. Paul, Minn., law firm that represents
> growers.

> The legality of plant patents was untested until Pioneer Hi-Bred, the
> nation's biggest seed company, sued J.E.M. Ag Supply Inc., a Belmond,
> Iowa, farm-supply dealership, in 1998 for selling Pioneer corn seed to
> farmers without its permission. Pioneer argued that its corn-plant
> patents gave it the right to decide who sells its seed.

> What was routine litigation exploded in importance when Bruce E.
> Johnson,
> the Des Moines, Iowa, lawyer for the farm-supply dealership, argued
> among
> other things that the special exemptions created for farmers by Congress
> in the Plant Variety Protection Act of 1970 essentially made the
> patenting of plants illegal.

> The federal judge hearing the case in Sioux City, Iowa, took the
> argument
> so seriously that he cleared the way for the question to go to the U.S.
> Court of Appeals for the federal circuit in Washington, which upheld
> plant patents in January 2000.

The CAFC has a record of upholding anything that is in favor of
patentability.  Their argumentation is interesting:

> Among other things, the majority in the Supreme Court decided that
> Congress has encouraged a broad use of patents and hadn't taken steps to
> directly block utility patents on seeds.

As with software in the 80s, they (and writers like Donald Chisum) argued
that congress has not set very clear limits and that in the absence of
those, it was not correct to "discriminate against a certain technology".
They completely forgot the predominance of the freedom principle in
liberal democracies:  if congress hasn't decided on behalf of software,
gene, crop and other patents, then there is no reason to discriminate
against developpers, farmers and others, who want to live as securely as
for example novel authors.  But it seems that the CAFC and its friends
look at matters only through the patent movement glasses.  And this WSJ
journalist took their rhetoric at face value.

-- 
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation	    http://swpat.ffii.org/
98000 signatures against software patents       http://www.noepatents.org/



