Talk:Bowman v. Monsanto Co.: Difference between revisions

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:*{{u|Jytdog}}, this is first and foremost, a legal article about a Supreme Court case. You have 3 lawyers (4 if you include Praeceptor, which I would) telling you that the material belongs in the article. On the other side is, well, you. I would invite you to drop this now, so we can move forward. <span style="border:1px solid #900;padding:2px;background:#fffff4">[[User:GregJackP|<span style="color:#900;font-size:110%;font-family:Mistral">GregJackP</span>]]&nbsp;[[User talk:GregJackP|<span style="color:#900;font-size:60%">Boomer!</span>]]</span> 04:02, 20 June 2015 (UTC)
:*{{u|Jytdog}}, this is first and foremost, a legal article about a Supreme Court case. You have 3 lawyers (4 if you include Praeceptor, which I would) telling you that the material belongs in the article. On the other side is, well, you. I would invite you to drop this now, so we can move forward. <span style="border:1px solid #900;padding:2px;background:#fffff4">[[User:GregJackP|<span style="color:#900;font-size:110%;font-family:Mistral">GregJackP</span>]]&nbsp;[[User talk:GregJackP|<span style="color:#900;font-size:60%">Boomer!</span>]]</span> 04:02, 20 June 2015 (UTC)
:wow you are personalizing things in a way that is really inappropriate; please stop doing that. with regard to relative expertise in this field, I do recommend that you read the discussion above prior to your arrival. I am not the one citing law on breeders rights. You also have not addressed the notion that is emphasized in the proposed content that you added - namely Stern's issue with "making". The article you cite above by Daryl Lim is not in line with Stern with regard to "making" - instead it explains how that term is generally used in biotech law and is not arguing with SCOTUS on that point. You should read it. [[User:Jytdog|Jytdog]] ([[User talk:Jytdog|talk]]) 17:22, 20 June 2015 (UTC)

Revision as of 17:22, 20 June 2015


Recent edits

copied from Jytdog talk page today by PraeceptorIP with my blessing Jytdog (talk) 16:03, 12 June 2015 (UTC) Jytdog, what I was trying to do, first, was replace the pejorative term "loophole" with a more neutral way of putting it that did not suggest wrongdoing or bad intent by Bowman, as the prior writer did. Second, I think it is necessary to tell readers that crop soybeans are the same as seed, so that you can use the crop beans as seed to grow new crops. Otherwise it is unclear what is going on.[reply]

Instead of just reverting, why don't you come up with a way to do these things that you would find OK?

I think that is an improper revert. Maybe my way of saying this (what's in the first para. above) is not best, but what would you suggest? I would welcome a helpful edit.

PraeceptorIP (talk) 01:18, 12 June 2015 (UTC)[reply]

You are making it read like an essay intead of an encyclopedia article. Please don't use footnotes with asides, and please don't include WP:OR like "Thus far, there has been relatively little scholarly commentary on the case in law journals". Also we don't use honorifics like "Professor Gholsh". Just because he happened to write a blog (even if it was in patently-o) doesn't mean he is quotable. Jytdog (talk) 01:25, 12 June 2015 (UTC)[reply]

Jytdog, you edited out the subheads. You therefore have the three court decisions as part of the "Background." Court decisions do not belong in the Background section.

You are not editing carefully. Some of your edits are improvements. But some make the article worse (like what I mention above in the first three sentences). You shouldn't revert just for the sake of reverting. That appears to be what you did here. For example, why did you delete the sentence following the statement that he had a contract--that the infringing seed plantings were not the ones under the3 contract, so it wasn't a breach of contract that he did it. Otherwise, the preceding sentence is misleading. It suggests that Bowman "replanted" in violation of his contract with Monsanto--untrue!

Maybe we could discuss in detail what you want to revert and why. Then we could come up with an improved article, with fewer of the mistakes now in it.

PraeceptorIP (talk) 01:49, 12 June 2015 (UTC)[reply]

you mean this dif perhaps, where I reverted a whole boatload of OR that you added? Jytdog (talk) 01:57, 12 June 2015 (UTC)[reply]
please continue this at the article talk page so others who care can join in. thx. Jytdog (talk) 02:15, 12 June 2015 (UTC)[reply]
OK. But before I switch Talk pages, that is *NOT* OR. I can provide cites. PraeceptorIP (talk) 15:49, 12 June 2015 (UTC)[reply]

what exactly is the content dispute at this time? [Not much! PIP] Jytdog (talk) 16:03, 12 June 2015 (UTC)[reply]

Most of your present edits are reasonable points. You edited with sufficient discrimination to make few things left as to which reasonable persons could not take either view. PraeceptorIP (talk) 21:06, 12 June 2015 (UTC)[reply]
Great. Jytdog (talk) 21:56, 12 June 2015 (UTC)[reply]

UNDUE

Praceptor you are giving a ton of WEIGHT to the Stern source. Stern is critical of the decisions of three courts in this case, and a whole history of case law around biotech in the US and abroad. It is fine to use him but please do not give UNDUE weight to his POV. Thanks. Jytdog (talk) 18:50, 12 June 2015 (UTC)[reply]

OK. That's a fair comment. But history isn't uniformly on the side you say it is. In Canada, the Supreme Court said growing plants from saved seed is a "natural process" and therefore not infringing.
Why did you delete the statement that the "replanted" seeds were not subject to the Monsanto-Bowman contract? If you delete that you should also delete the preceding sentence that incorrectly suggests that Bowman breached a contract not to do what he did. That's incorrect, as the fn. attests. He contracted not to replant seeds he bought from Monsanto; he bought these seeds on the open market from a grain elevator. PraeceptorIP (talk) 19:19, 12 June 2015 (UTC)[reply]
One thing at a time, please. The relevant case I am aware of in Canada is Monsanto Canada Inc v Schmeiser. What case are you talking about? Thanks. Jytdog (talk) 20:28, 12 June 2015 (UTC)[reply]
I'll have to research it because I read it a while ago and don'r remember the name right now. In the meantime, however, how about an answer to the second paragraph? And further, why do you object to saying "replant" is wrong because it is "plant"—not "replant"? Do you have a reason why you think it is correct to call it "replant"? (Never mind that one thing at a time dodge as a way to avoid answering.) Thx! PraeceptorIP (talk) 20:51, 12 June 2015 (UTC)[reply]
First, please discuss content, not contributors, on Talk pages. Thanks. Next, please do come back with the results of your research - I like to learn and would be interested. I am not aware of any major market jurisdiction where seeds are not patentable or where exhaustion applies to the sale of seeds or other patentable life (e.g transgenic mice, which are not patentable in all jurisdictions). Now that you've answered on the Canada thing, I'll respond to the other. Yes, it is good to say that the license agreement was not relevant. I've restored that content. My bad. Jytdog (talk) 21:12, 12 June 2015 (UTC)[reply]
So far, the most relevant thing I have come up with is C-18, a Canadian law that came into effect 27 Feb 2015. [back to left margin -->]

According to a Canadian Govt agency C-18 provides:

"The holder's rights do not extend to production, reproduction, conditioning, and storing/stocking of harvested material of the protected plant variety grown by a farmer on the farmer's holdings and used by the farmer on their own holdings for the purpose of propagation of the variety (e.g. farm-saved seed). Canadian farmers will be able to continue saving, cleaning, treating, storing and replanting seed of protected varieties on their own land." [But they must not sell the seed to other farmers.]

This law appears to be a modification of what was formerly called the Farmer's Privilege, crossed with some dicta in the oncomouse case about no patent protections on natural processes. But the Schmeiser case says (5-4) that the patent protection is not on the canola plant but on the modified cells or genetic material contained inside the plant. By the way, for whatever it is worth, the Schmeiser case was about use, not making, as was Bowman.

I have not been able to find the case law I was looking for and I am beginning to suspect that it was somebody's (or somebodies') speculation based on extrapolating the language of the oncomouse case to crop plants. (Also, not taking into account the ploy about it's not protection on the plant, it's on the genes or cells inside it.)

Now, as to another point made above: "not aware of any major market jurisdiction where seeds are not patentable or where exhaustion applies to the sale of seeds....

It isn't whether exhaustion applies to seeds (saved and used for new crops as done from the Neolithic Revolution). It doesn't! That is what Bowman clearly and correctly held. It's whether the challenged conduct (plant saved seeds to grow a crop) is making or something else within 35 USC 271(a) or its equivalent. It may be akin to exhaustion but it is not exhaustion. PraeceptorIP (talk) 22:08, 12 June 2015 (UTC)[reply]

on the exhaustion thing, I meant patents covering seeds, sorry. The passage you quoted from Canadian law is about plant breeders rights which are a separate kind of IP that applies to plants. The patent law in Canada on this was settled by Schmeiser unless something new has come up.
I didn't respond on the "replant" thing. Stern has an idiosyncratic reading which, as far as I know, is outside mainstream contract and case law, where "replanting", is well understood to be shorthand for "planting the harvested seed". I get his point that "replanting" serves great rhetorical purpose in baking in the continuity of the genetic material in subsequent generations of seed. But that terminology is "done" and WP is not a place to right great wrongs. If lots of people (and courts) pick up on Stern's meme and stop using "replanting" as shorthand for "planting the harvested seed" then it would make sense that WP would reflect that. Now it is a (very) minority voice that we do not give WEIGHT to. Jytdog (talk) 23:01, 12 June 2015 (UTC)[reply]
OK. What you say sounds reasonable. PraeceptorIP (talk) 23:49, 12 June 2015 (UTC)[reply]

More on the interminable editing of "Reaction"

This is beginning to look pretty reasonable. But on further reading, I think it is incorrect to say "rather than merely using a purchased article on which the patent rights had become exhausted" in characterizing the last commentator's remarks. That article doesn't take the position that Bowman used purchased seeds on which patent rights had become exhausted. The article does not argue with the Court's treatment of the exhaustion doctrine at all, and seems to agree that the doctrine just does not apply in this context. I therefore think the above quoted clause should be deleted.

What the article is saying is that Congress never addressed whether planting seeds to grow crops is a making. It also says Dr Johnson's 1755 dictionary says that making refers to artificial processes, not natural ones. The conclusion drawn (at the very end) is that the Court should not have rushed in where Congress was silent. Instead (see the article's fn. quote from the Benson case), the Court should have declined to hold that a 12,000 year old practice was patent infringement unless and until Congress specifically said it was. It was for Congress to act here, not the Court. Something like that, if anything, should go where the clause now is that I suggest should be deleted.

PraeceptorIP (talk) 22:34, 12 June 2015 (UTC)[reply]

I think we should just remove that as Stern is way outside the mainstream here. Doing that now. Jytdog (talk) 23:02, 12 June 2015 (UTC)[reply]
oh my please see your Talk page. Jytdog (talk) 23:05, 12 June 2015 (UTC)[reply]

Still more on Reaction

Based on the most recent comment of jytdog elsewhere, I propose adding a further reference/citation at the very end after the reference to U of Wisc Law School Professor Shubha Ghosh's comments. What is shown below in bold is how it reads now, and what I propose to add is in regular Roman.

A co-author of an amicus brief on behalf of Bowman filed by the American Antitrust Institute expressed relief that the loss was on a narrow basis rather than providing a broad affirmation of the lack of patent exhaustion for self-replicating technologies.[18][1] Another academic commentator did not take issue with the Court's refusal to shelter Bowman's conduct under the exhaustion doctrine, but criticized the Court's classification of the act of planting seeds and growing crops from them as an act of "making" a new patented article[2] for purposes of the US patent statute.[3]

Unless there is a consensus against this addition to the very scanty set of references to commentary about this decision, I will incorporate it after a reasonable time.

References

  1. ^ [Footnote 18 is a long quotation omitted here]
  2. ^ Richard H. Stern, Bowman v Monsanto: Exhaustion versus Making, [2014] Eur. Intell. Prop. Rev. 255, 260-61. He argued that, because Congress has not addressed the issue whether planting and growing a crop from harvested seeds constituted a "making" of a patented product, the Court should have left it to Congress to make the decision in the first instance whether to outlaw a practice in which farmers have engaged for 12,000 years.
  3. ^ 35 U.S.C. § 271(a).

PraeceptorIP (talk) 00:45, 20 June 2015 (UTC)[reply]

already discussed above. This is UNDUE weight to a decidedly minority point of view. Please provide any other discussion that takes this perspective on "making" with regard to self-replicating inventions. Jytdog (talk) 01:15, 20 June 2015 (UTC)[reply]
The only one who appears opposed is you. Looking at the addition from a legal standpoint, it is decidedly NOT a minority view. I have reinserted the material. If you intend to remove it, please get consensus (which means more than just you). GregJackP Boomer! 01:41, 20 June 2015 (UTC)[reply]
Please note that Praceptor said his view is exactly counter to what SCOTUS did and said. There is really just you and I here, as Praeceptor is conflicted out. Especially as Stern is arguing with SCOTUS here and the stream of law it stands within, please show me the sources that show his view is mainstream and deserves WEIGHT in this encyclopedia article. Thanks Jytdog (talk) 01:45, 20 June 2015 (UTC)[reply]
What does being counter to what SCOTUS did have to do with his position? SCOTUS gets things wrong all the time, that's why later cases overrule previous cases. You know, like Brown v. Board of Education In any event, you, as one editor, do not get to determine consensus, and Praeceptor's position is much more sound than yours. It's clear that you don't understand the law from our previous discussions. Praeceptor is a clear-cut expert in the field. You are not. Give it a break and stop hounding him. In any event, see Tabetha Marie Peavey, Bowman v. Monsanto: Bowman, the Producer and the End User, 29 Berkeley Tech. L.J. 465, 473 (2014) ("Others, however believe that []cases recognizing a patentee's ability to contract around exhaustion using post-sale restrictions reflect a departure by the Federal Circuit from established Supreme Court jurisprudence.") and Daryl Lim, Self-Replicating Technologies and the Challenge for the Patent and Antitrust Laws, 32 Cardozo Arts & Ent. L.J. 196 (2013-2014) ("[P]atentees cannot use a license to cover up what was actually a sale.") (addressing the exhaustion doctrine). Both of these articles cite Stern. I can find plenty of others, this is far from a clear-cut issue. GregJackP Boomer! 02:59, 20 June 2015 (UTC)[reply]

The cited material by Stern should stay in. For further support of his position, the articles Greg referenced above should be added to the article. It is pretty commonplace in SCOTUS articles to include negative and positive commentary about the decision. Minor4th 03:04, 20 June 2015 (UTC)[reply]

  • I see no reason to exclude the opinion of an expert in the subject area. If there is a concern that this opinion is outside the mainstream, this can be dealt with in the article by providing examples of differing opinions. bd2412 T 03:45, 20 June 2015 (UTC)[reply]
  • Jytdog, this is first and foremost, a legal article about a Supreme Court case. You have 3 lawyers (4 if you include Praeceptor, which I would) telling you that the material belongs in the article. On the other side is, well, you. I would invite you to drop this now, so we can move forward. GregJackP Boomer! 04:02, 20 June 2015 (UTC)[reply]
wow you are personalizing things in a way that is really inappropriate; please stop doing that. with regard to relative expertise in this field, I do recommend that you read the discussion above prior to your arrival. I am not the one citing law on breeders rights. You also have not addressed the notion that is emphasized in the proposed content that you added - namely Stern's issue with "making". The article you cite above by Daryl Lim is not in line with Stern with regard to "making" - instead it explains how that term is generally used in biotech law and is not arguing with SCOTUS on that point. You should read it. Jytdog (talk) 17:22, 20 June 2015 (UTC)[reply]