A coalition of more than 50 trade organizations, seed businesses, farms, and farmers has filed a lawsuit in a federal court in New York, to stop Monsanto Co. from enforcing its genetically engineered (GE) seed patents against farmers whose fields become contaminated with the GE seeds. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., filed March 29, 2011). Among other matters, the plaintiffs claim that the seed patents are invalid, because “only technology with a beneficial societal use may be patented,” they violate “the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode.” The plaintiffs also allege that the patents are not infringed by farmers whose fields become contaminated with GE seeds, because the farmers do not intend to use them, “and Monsanto’s patent rights in transgenic seed exhaust…
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A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
A Missouri resident has filed a complaint in federal court against Kraft Foods Inc., alleging that it has been marking its Kool-Aid® and Country Time Lemonade® drink mix packages with the U.S. patent numbers for container patents that expired in April 2008. Brown v. Kraft Foods Inc., No. 10-1007 (E.D. Mo., filed June 1, 2010). Claiming that the marking violates 35 U.S.C. § 292, the plaintiff seeks injunctive relief, “a civil monetary fine of $500 per false marking offense,” costs, attorney’s fees, and interest. This litigation is one of a recent crop of false marking lawsuits to which the Federal Circuit Court of Appeals apparently opened the door when it ruled that the penalty could be imposed under the law on a per unit basis. Shook, Partner Peter Strand is focusing on false marking issues in his May and June IpQ newsletters. The May issue can be accessed here.
A European Court of Justice adviser has determined that Monsanto Co. cannot seek royalties from a company that imported from Argentina soy meal containing residues of Monsanto’s patented gene. Case C-428/08, Monsanto Tech. LLC v. Cefetra BV (Op. of Advocate Gen. Mengozzi, delivered March 9, 2010). Monsanto has no patent on its Roundup Ready® soybeans in Argentina. In 2005 and 2006, the company had shipments of soy meal from Argentina impounded in Amsterdam harbor, and testing showed that it contained some of the seed traits that Monsanto has patented in the European Union (EU). The company then sued the importers for infringement, and a Dutch court hearing the dispute sought guidance from the EU tribunal. Disagreeing with Monsanto, which argued that its EU patent covers the DNA sequence, the adviser opined that under Directive 98/44, “a DNA sequence must be regarded as protected, even as a self-standing product, only where it…
The International Trade Commission (ITC) has reportedly ruled that Chinese manufacturers and U.S. distributors did not infringe the sucralose patents owned by Tate & Lyle. The ITC’s April 6, 2009, ruling affirms an administrative judge’s September 2008 preliminary ruling about the sweetener patents. More details about the case appear in issue 276 of this Update. According to a news source, Tate & Lyle is reviewing the latest determination and will decide whether appeals through the Federal Circuit Court of Appeals are feasible. Numerous sucralose competitors are apparently ready to try to break what has been characterized as Tate & Lyle’s near monopoly of the global $1.3 billion sucralose market. The company’s president called the ruling a disappointment, but, referring to the quality of its product and the efficiency of its manufacturing processes, was quoted as saying, “intellectual property is just one of the many components which define Tate & Lyle’s…
