The Supreme Court ruled today in Bowman v. Monsanto Co., holding that the doctrine of patent exhaustion does not protect the use of patented genetically-modified seed to cultivate a new crop. The court reasoned that the replanting was a “making” of the invention, because germination resulted in a copying of the seed’s genetic material, and therefore was outside the type of downstream use or sale protected by exhaustion. See the Patlit Blog for a discussion of the decision.
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The U.S. Court of Appeals for the Federal Circuit decided CLS Bank Int’l v. Alice Corp. today. In 7 opinions spanning 135 or so pages, the court affirmed the determination that the method, media and system claims were all ineligible. But the judges could not agree on a cogent approach for determining eligibility of computer-implemented processes and related inventions under 35 U.S.C. § 101 (which was the purpose for granting en banc review). So it looks like the issue will continue to fester. As Chief Judge Rader notes in his opinion,
No portion of any opinion issued today other than our Per Curiam Judgment garners a majority. The court is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court agree that the method claims do not recite patent eligible subject matter, no majority of those judges agrees as to the legal rationale for that conclusion. Accordingly, though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.
Rader Concur Op. at 1 n.1. The decision (or lack thereof) is HERE.
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The Center for Michigan publication, Bridge, recently published a profile of U.S. District Court Judge Avern Cohn. The article reports that, ”Although Cohn runs his courtroom with an iron fist and often has little patience with lawyers who show up unprepared for court or who lack his mental agility, attorneys praise him for his fairness, legal knowledge and willingness to reconsider his decisions.” It also reveals that he lists “work” and “reading” as his hobbies. The full article is HERE.
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