BLOGS: The High-Tech Patent Agent: A View from the Trenches in Silicon Valley

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Wednesday, May 29, 2013, 12:43 PM

How Monsanto Applies to Nonagricultural Biotechnology

*Note: This article originally was published by on May 23, 2013.

The facts behind the Supreme Court’s recent ruling in Monsanto v. Bowman are simple enough. Farmers are able to buy soybeans containing Monsanto’s patented glyphosate resistance technology under a license that permits them to plant and grow one generation of crops. Vernon Bowman skirted this program, however, by purchasing commodity soybeans from a grain elevator knowing that the seeds would nonetheless likely contain the very same Monsanto technology. He then planted the seeds, raised crops, and saved seeds from these crops to plant new crops. The Supreme Court held that Bowman’s actions infringed Monsanto’s patents because unlicensed growth of the seeds was a new making of the patented invention. Consequently, the doctrine of patent exhaustion did not provide any defense as to these new seeds.

This was not a surprising result for the biotechnology industry. The idea that patent rights in seed progeny are not exhausted by the original sale of their “parents” was well established in the United States, and is even codified in the European Biotechnology Directive.

The Court left us with a relatively clear answer regarding the scope of patent exhaustion related to seeds. The use of the purchased, licensed seeds for consumption and/or processing cannot be interfered with by the original seller, as the patent rights on those individual (sold) seeds have been exhausted. The planting and cultivation (i.e., replication) of those seeds, however, can only be done under a license from the patentee. In other words, even though someone sells you a bag of seed, you have no right to plant and grow that seed without a license (although there may be a good argument that the license should be implied in appropriate cases).

Continue reading the full article at

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Tuesday, May 28, 2013, 9:04 AM

Millions of US Patents, Follow-Up

Concerning the earliest US issued patents, alert readers David Kline and Alvin Thomas inform us that the actual first US patent was issued in 1790, and that patents were not numbered until 1836, beginning with the Ruggles patent.  A “Table of Annual US Patent Activity since 1790”, published by the United States Patent and Trademark Office details the progression of US patent applications and US issued patents for each year up to the present.  In calendar year 2012, there were 542,815 utility patent applications, 32,799 design patent applications, and 1149 plant patent applications.  In 2012, the US issued 253,155 utility patents, 21,951 design patents, and 860 plant patents.  Compare this to 1997, when 111,984 US patents issued, and 1999 when 270,187 patents were applied for.  This means the patent volume has doubled in 13 to 15 years (depending upon whether we are looking at patents applied for or issued).

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Friday, May 10, 2013, 8:52 AM

Millions of US Patents

The very first US patent, “LOCOMOTIVE STEAM-ENGINE FOR RAIL AND OTHER ROADS”, Inventor: John Ruggles, was issued on July 13, 1836.  Fast-forward to December 28, 1976, when the 4 millionth US patent was issued, titled “PROCESS FOR RECYCLING ASPHALT-AGGREGATE COMPOSITIONS”, Inventor Robert L Mendenhall.  That’s 4 million US patents issued in 140 years.  The 8 millionth US patent, “VISUAL PROSTHESIS”, Inventors: Robert J Greenberg et al., was issued just 35 years later on August 16, 2011.  This means that in 35 years, the US doubled the amount of patents that had taken 140 years to issue.

What does this mean?  I believe it means the pace of invention and innovation is accelerating.  There are more people alive on this planet than ever before.  Thus, there are more scientists, engineers, working professionals and so on, and most importantly for this topic, more inventors alive on Earth than ever before.  Companies and individuals recognize the value of patenting inventions.  I believe the pace of patenting will continue to accelerate.  I don’t see how it could be otherwise, short of legislation greatly curtailing patenting or the occurrence of some major calamity.  Innovation is a hallmark of mankind.

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Wednesday, May 1, 2013, 2:01 PM

Building Blocks for Inventions

Periodically, a popular sentiment resurfaces that innovation is slowing or is altogether dead.  This assessment of innovation has always been wrong in the past, and will continue to be so in the future.  Here’s why.  What do inventors do?  Inventors look at existing situations, existing problems, and new problems, and ask, what can I do with the building blocks I see around me to make or do something new or to solve a problem?  Then, they innovate, and we in the patent community support them.  Every time a new set of building blocks becomes available, a whole new crop of innovations is enabled and encouraged.  Let’s look, briefly, at a few examples in the history of innovation, and then look at today’s and tomorrow’s building blocks.
Back at the dawn of man, people discovered how to make fire.  This building block begat cooking, hardening of wood spear tips, pottery, baking of clay bricks, metal smelting and metallurgy, which inventions qualify as a whole new crop of building blocks.  From these, more inventions arose.  Alchemy gave rise to chemistry, which set forth the elements as building blocks.  Without this, man-made materials would not be nearly so widespread.  The discovery of how to purify and work with aluminum gave rise to aluminum airframes for the dirigible and later airplanes.  The invention of the transistor gave rise to the transistor radio and amplifiers.  Look at what the invention of the integrated circuit did, as a building block.  The computer, as a building block gave rise to an entire class of inventions that are software-related.  Now that computers are interconnected over the Internet, there is an explosion of Internet-related inventions and patents, covering software and hardware.  LEDs, which were originally used for indicator lamps, developed into alphanumeric displays and are now used as backlighting for liquid crystal display televisions and early generation replacements for the venerable incandescent light bulb.  I could go on for days and weeks about this.
Here are some new building blocks.  The human genome was recently mapped.  Nanotechnology structures are being developed.  A brain-mapping project will soon get underway.  Robotics technology has been in industry and in laboratories for a while, but is not yet general-purpose.  The driverless car has entered public roadways and is poised to become widespread.  What new innovations, technologies, patents, industries and changes to our lives will come from these building blocks and the inventors who ask, what can I/we do with that?  I can hardly wait to find out.

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