Diana Moss, in her analysis of the anti-trust case against Monsanto (#msg-44002179), frames the question as “tension between patent law and antitrust law.” Her implicit arguement is that antitrust law needs to be invoked to check abusive use of patent law protection.... I would argue that patent law needs to be honored to check abusive implimentation of antitrust action.... This is a value judgement that might enter the political arena, largely because protection of a nation’s agricultural industry is of fundamental importance to its citizens. Thus, it seems worthwhile to understand the issues involved should the DOJ investigation morph into a congressional investigation of Monsanto.
Ms Moss raises the following issues regarding this tension between patent law and antitrust law as applied to the Monsanto situation:
Any analysis must consider several important factors, including .... what behavior constitutes anticompetitive use of patented technology to create and maintain monopoly platforms ...
The contradiction between apparently robust advancement in agricultural biotechnology and evidence that innovation is struggling during a period of significant consolidation and dominance by a single firm reveals a darker side to innovative activity. This includes deterioration in innovative quality, reduced incentives to innovate, and fewer new transgenic products brought successfully to market. The explanation for this is likely to be a function of two factors. One is a flawed patent review process implemented by the U.S. Patent and Trademark Office, a problem that has been exhaustively explored elsewhere.(52) A second is the strong motivation to use patented technology as a tool to stymie competition through delay or prevention of new commercial technologies. (53) The second of these questions defines the difficult and unresolved area in which concerns over anticompetitive practices under antitrust law come into direct contact with the goal of protecting innovation under patent law. ... In the first case, one systemic problem is excessively broad rights of ownership granted through liberal or overbroad patenting, especially on research tools or fundamental technologies. Such technologies can generally be applied to a number of different research areas and lead to a diverse set of innovations. For example, there is some evidence to suggest that the difficulty associated with accessing an entire package of plant transformation technologies necessary to develop transgenic seed products has prevented entry into genetic engineering.
... In addressing complaints involving competitive conduct, patent infringement, and merger cases, both the courts and the DOJ have been faced with critical questions of whether restrictions on the use of technology (e.g., anti-stacking provisions) exceed the scope of the patent. While the judicial record on this issue in transgenic seed is murky at best, there are some signs of progress. For example, relief sought by the DOJ in DeKalb and Delta and Pine Land clearly recognized the importance of access to patented technology to competition and required the removal of offending restrictive measures.
... the possible application of the recent Supreme Court decision in Quanta Computer, Inc. V. LG Electronics, Inc. to transgenic seed. The court concluded that the patent owner (LG Electronics) had exhausted its enforceable patent rights against Quanta by an intermediate seller’s (Intel) sale to Quanta of goods covered by LG Electronic’s patents. Applied in the transgenic seed context, Quanta could potentially offer some restraint on the ability of patent holders to prevent rival biotechnology developers from modifying or stacking their genes. (This has been attempted in the case of seed saving but not stacking. See, e.g., Monsanto Co. v. Scruggs, 2009 U.S. App. LEXIS 11700. For further discussion see, e.g., Peter Carstensen, “Post-Sale Restraints via Patent Licensing: A “Seedcentric” Perspective,” 16 FORDHAM INTEL PROP. MEDIA & ENTERTAINMENT L. J. 1053 (2006).
(52) See, e.g., U.S. “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy,” U.S. Federal Trade Commission (October 2003).
(53) See, e.g., F. M. Scherer, “The Political Economy of Patent Policy Reform in the United States,” 7 JOURNAL ON TELECOMMUNICATIONS & HIGH TECHNOLOGY LAW 167 (2009).
Ms Moss describes Monsanto’s patent protection as being derived from the following:
Innovation involving transgenic seed is protected under U.S. patent and agricultural law. One source of protection is a Plant Variety Protection (PVP) certificate issued by the U.S. Department of Agriculture (USDA) under the 1970 Plant Variety Protection Act (PVPA, as amended in 1994). A certificate grants a breeder exclusive rights to market a new variety of sexually reproduced plants for 20 years. The PVPA contains both a research and farmer exemption regarding use of the seed. In Asgrow v. Winterboer (1995), the Supreme Court upheld the farmer’s right to save and sell seeds protected under the PVPA. Protection for asexually reproduced plant varieties is provided by a patent issued by the U.S. Patent and Trademark Office (PTO) under the Plant Patent Act (PPA) of 1930. The PPA does not confer the right of the patent-owner to control what users do with derivatives of the plant.
The limited patent protection provided under the PPA was expanded in the seminal 1980 Diamond v. Chakrabarty case when the Supreme Court ruled that standard “utility” patents under the 1952 Patent Act extended to genetically engineered microorganisms. In 1985, the court again expanded patent protection to genetically modified plants in Ex Parte Hibberd. With a utility patent, therefore, patent-holders can sue farmers and rivals for patent infringement and pursue litigation to enforce licensing agreements. The court speedily resolved the inevitable questions about potential overlaps and conflicts between various forms of protection in J.E.M. Ag. Supply v. Pioneer Hi-Bred in 2001. There, the court held that sexually reproduced plants eligible for protection under the PVPA are also eligible for utility patents. The court further opined that because the requirements and protections provided by the latter are more stringent than those for a PVP certificate, the two forms of protection do not conflict.
AI
