You want to believe — at some deep, down gut level — that Congress will eventually listen to voices that matter when it comes to make changes in the law. But then, this is Congress.
Whether you love them or hate them, the venture capital industry is a force to be reckoned with. This is a group that put $25.5 billion into innovative companies in 2006 alone. This is also a group for which strong patent protection means the difference between payday and bankruptcy.
So it was only natural that some put in their two cents on the Patent Reform Act of 2007 (S. 1145), by sending a letter to the U.S. Senate Committee on the Judiciary addressing the concerns of emerging companies. They sum up their concerns as:
Suggesting a different approach to awarding damages based on a patent’s specific contribution over the prior art. the group suggests maintaining the current multi-factored analysis and defining limited circumstances in which apportionment may apply.
Arguing against the creation of a new proceeding within the U.S. Patent and Trademark Office to permit extended administrative challenges of validly-issued patents and supporting the approach in the House with one fixed post-grant opposition and an enhanced inter partes re-examination.
Arguing against curtailing the inequitable conduct defence and proposing the codification of a standard of clear and convincing evidence and a two-pronged test that specifies knowing and willful deception regarding material information and an objective standard for determining whether a claim would have issued absent the misconduct.
See the entire letter here: Venture Groups Letter to Senate
Others like patent reform. The American Corn Growers Association (ACGA) , representing 14,000 members in 35 states, wrote their own letter to Congress letting them know that patent reform is critical. Pulling out the standard line used by politicians everywhere about how “family farmers” are being hurt, the group claims:
“Currently farmers are vulnerable to attack from biotech interests that sue family farmers for allegedly infringing on their patent rights due to actions that are often beyond their control,” explained Bolin. “ACGA urges quick passage of legislation that would help level the playing field for family farmers defending themselves against dubious claims of patent infringement.”
“Family farmers have been struggling for years against lawsuits that claim they have willfully infringed on the patents of genetically modified organisms (GMOs),” added Bolin. “These allegations of infringement are often unwarranted since farmers in many cases are sued after their fields are contaminated by pollen that naturally drifts over from a neighboring field. It has been proven that pollen (including GMOs) can drift more than five miles, which is impossible for an individual farmer to block or control in any way. Accordingly, these farmers should not be accused of ‘willfully’ infringing on the patent of seeds that naturally cross-pollinated into their fields.”
Bolin continued by stating, “Farmers should not be forced to travel hundreds of miles to another state to defend themselves against such allegations. To do so, often to defend themselves against unwarranted accusations, adds undue and often insurmountable financial stress on their modest family budgets. Currently the corporate plaintiffs in these cases often select courts in distant locations that favor them, which requires family farmers to travel to courts that are not only far away but also biased against them. The situation that farmers must endure today is clearly not the intent of the patent system and it should be corrected.”
Presumably, ACGA is referring to such cases Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, where the Supreme Court of Canada upheld the validity of a Monsanto patent. Despite an abundance of news articles perpetuating the view that this case was about an elderly gentleman haplessly planting a few plants in Mr. McGregor’s garden, as though it was his only sustenance, this case actually concerns a large scale, commercial farming operation that grew canola containing a patented cell and gene without obtaining license or permission. This is not about the innocent discovery by farmers of “blow-by” patented plants on their land or in their cultivated fields.
Schmeiser never purchased Roundup Ready Canola nor did he obtain a license to plant it. Yet, in 1998, tests revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up of Roundup Ready plants. While the origin of the plants is unclear, the trial judge found that “none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality” ultimately present in Schmeiser’s crop.
For a U.S. case of seed saving, see Monsanto v. McFarling, where Monsanto went after the farmer for breaching a technology agreement by replanting genetically modified crops that resist glyphosphate herbicide. In that case, McFarling saved 1500 bushels of Roundup Ready soybeans from his 1998 harvest and planted them the following year. He saved over 3000 bags of soybeans from his 1999 harvest for his next crop.
See more here: ACGA Press Release
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