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Monsanto whacks farmer David at CAFC

By Lawrence B. Ebert, Esq.

Monsanto whacked farmer Loren David for his seed-saving and use of saved Round-Up resistant soybean seeds protected by
US 5,352,605.

In the appeal to the Court of Appeals for the Federal Circuit (CAFC), attorneys for Mr. David argued that his activities were not infringing because the ?605 patent is not directed towards a plant or seed but rather to a gene. Representative claims of the ?605 patent include the following:

1. A chimeric gene which is expressed in plant cells comprising a promoter from a cauliflower mosaic virus, said promoter selected from the group consisting of a CaMV (35S) promoter isolated from CaMV protein-encoding DNA sequences and a CaMV (19S) promoter isolated from CaMV protein-encoding DNA sequences, and a structural sequence which is heterologous with respect to the promoter.

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.

8. A plant transformation vector which comprises a disarmed plant tumor inducing plasmid of Agrobacterium tumefaciens and a chimeric gene, wherein the chimeric gene contains a promoter from cauliflower mosaic virus, said promoter selected from the group consisting of a CaMV(35S) promoter and a CaMV(19S) promoter, and a structural sequence which is heterologous with respect to the promoter.

Those patent prosecutors drafting claims to "a chimeric gene," "a plant cell," or "plant tranformation vector" should note that the CAFC found the infringing act as ?planting a seed containing the [claimed] gene sequence . . . [t]he gene itself is being used in the planting, and infringing act.? That is, the David arguments don't work.

See also

http://ipbiz.blogspot.com/2008/01/monsanto-v-bayer-bioscience.html

http://ipbiz.blogspot.com/2007/12/monsanto-whacks-farmer-beneteau.html

The David case is not unrelated to Monsanto v. Homan McFarling, wherein farmer McFarling, represented by Stanford law professor Mark Lemley, went down in flames. In the McFarling case, the CAFC had noted:

Although that patent does not explicitly claim seed containing a Roundup Ready genetic trait, it claims plant cells having that genetic trait, and farmer-grown Roundup Ready soybeans undisputedly contain such cells.

Full post as published by IPBiz on February 07, 2008 (boomark / email).