Monsanto Awarded ONE BILLION Dollars Due To Patent Infringement For A Product That Was Never On The Market

from the roundup-ready dept

Wed, Aug 8th 2012 11:31am — Mike Masnick

We've had plenty of stories over the years of Monsanto's incredibly aggressive stance when it comes to its "Roundup Ready" patents. The company has now been awarded $1 billion from Dupont for infringing on one of these patents. Now, here's a case where we're talking about competing companies, so perhaps no big deal, right? Except there's one tidbit here that makes this interesting: Dupont never brought the product in question to market. So the "damages" to Monsanto would seem to be minimal... except in a court of law apparently. According to Patently-O:

The damages theory was interesting. Since the accused product was not yet on the market, Monsanto did not seek any lost profit. Rather, Monsanto demanded a reasonable royalty for the research-use made by the defendants. Monsanto argued that the use of Monsanto's invention in DuPont's labs and Pioneer's test fields gave those companies an "improper head start" in making the GM seeds. The judge and jury agreed – if those companies wanted to build upon the invention then they should have first obtained a license. In the pharmaceutical world, 35 U.S.C. § 271(e) offers a research exemption for this type of activity. However, that exception does not apply here because of the low level of regulation over genetically modified food-products. The patent is set to expire in 2014. The patentee's right-to-exclusive-research supported by this case means that the 2014 date offers a starting-date for follow-on competitive research. Any actual products building directly upon the patented invention will arrive on the market sometime later.

Got that? Normally, companies can build on top of others' products as patents are set to expire, so they're ready to launch once the patent has expired. But, in this case, even trying to build new offerings in a lab for use later is apparently an insane billion dollar issue. Even worse, it means that any real competition, which will create more market-reasonable prices, gets significantly delayed as no one can prepare for when the patent expires.

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Filed Under: patents, research, roundup ready
Companies: dupont, monsanto

69 Comments

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Digger, 8 Aug 2012 @ 11:40am

Monsanto just needs to die!!!
Period, end of line.

If Monsanto doesn't want someone to work from their product, keep their genes outta my field. Oh wait, nature blew the pollen into it - sorry, it's mine now.
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- Anonymous Coward, 8 Aug 2012 @ 11:55am
  
  Re: Monsanto just needs to die!!!
  @Digger
  
  Re: If Monsanto doesn't want someone to work from their product, keep their genes outta my field. Oh wait, nature blew the pollen into it - sorry, it's mine now.
  
  You'd think that'd be the case but I suggest you watch the documentary "The Future of Food" sometime. You'd think thats how it would be but nope, US Gov't allowed Monsanto to force farmers in these cases to pay them. The farmers even lost in court, in once case, their life's savings.
  
  Sad.
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  - Stuart, 8 Aug 2012 @ 12:25pm
    
    Re: Re: Monsanto just needs to die!!!
    Normally I think Monsanto is a shit company.
    In the case this article is written about as well.
    The one you state though is one in which the farmer went on to poison his crop so that only the modified seed would remain.
    He sorted it to come up with only Monsanto seed that he could then use.
    That particular guy is a bit of a fuckhead.
    Do not use that dirty fuckhead to attack Monsanto with as he is easily shown to be just as bad.
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    - FuzzyDuck, 8 Aug 2012 @ 4:53pm
      
      Re: Re: Re: Monsanto just needs to die!!!
      Monsanto can go choke on my seeding device.
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- Anonymous Coward, 8 Aug 2012 @ 12:01pm
  
  Re: Monsanto just needs to die!!!
  Based on what I've heard, they will sue you into oblivion if even one of "their" seeds grows on your property (even if it got there via a bird-crap) and you haven't paid the license (/extortion) fee for it.
  
  Evil, period.
  
  Failing massive revolution, the west is on a track to destroy itself. Not that "multinationals" give a shit, mind you.
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  - Niall (profile), 9 Aug 2012 @ 3:37am
    
    Re: Re: Monsanto just needs to die!!!
    And then people wonder why Europe is so anti-GM.
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- Anonymous Coward, 8 Aug 2012 @ 6:13pm
  
  Re: Monsanto just needs to die!!!
  I take it you don't actually own a field?
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Anonymous Coward, 8 Aug 2012 @ 11:47am

mmmmmmmonsatno
Welcome to Carl's Jr. Would you like to try our EXTRA BIG ASS TACO? Now with more MOLECULES!

Carl's Jr... "Fuck You, I'm Eating."
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Wally (profile), 8 Aug 2012 @ 11:53am

Labs
Someone please explain to me (short and clear as I do not need a response like those that Anonymous Coward With a Unique Writing Style would give) who used whose lab.

I can only guess that DuPont tried to market their similar rebranded product earlier than within the standard year which is required by law. Other than that I see no wrong on DuPont's behalf. So maybe it was just a minor legal gaffe and nothing more.
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- Anonymous Coward With A Unique Writing Style, 8 Aug 2012 @ 12:38pm
  
  Re: Labs
  You get lengthy responses from me because I need to be thorough with you. If I make responses simple and one or two lines, you misunderstand or completely miss the point. If I make them lengthy, you end up repeating what I said or just throwing a temper tantrum.
  
  As I've said before, if you don't like length responses posted usually in order to correct flat out lies you tell (because I usually only respond to you about Android information) then start doing more research and stop being wrong.
  
  That's cute though that you think of me.
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  - Wally (profile), 8 Aug 2012 @ 2:05pm
    
    Re: Re: Labs
    You still don't have to be so longwinded in that response.
    [ link to this | view in chronology ]
  - Wally (profile), 8 Aug 2012 @ 2:17pm
    
    Re: Re: Labs
    Also, did you consider the fact you are way overly thorough? You lengthen your statements with long words to look intelegent. give your biased opinions as fact, and are really really hard to read. So of course I get confused by your cruddy way writing with having a jumble of words with a few (very few) intelegent statements or one-sided thoughts to validate the facts in your imagination. It's hard for me to lie to anyone at all really.
    
    Being thorough does not constitute long windedess.
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    - Anonymous Coward, 8 Aug 2012 @ 7:17pm
      
      Re: Re: Re: Labs
      I can't tell if your post is sarcasm. If not, how the heck can you misspell the word intelligent and expect people to take your evaluation of other people's intelligence seriously?
      
      Unless English is your second language, in which case, I understand. Speaking a second language is not necessarily easy. But if you struggle with the English language because it's your second language then your evaluation of what constitutes a word that few fluent English speakers know the meaning of is suspect. and don't expect us to 'dumb down' or simplify our English just because you struggle with the language. I'm not going to formulate my sentences around your limited English vocabulary and neither is anyone else. You can always visit www.dictionary.com or Google translate to help translate and define words.
      [ link to this | view in chronology ]
      - Wally (profile), 9 Aug 2012 @ 10:43pm
        
        Re: Re: Re: Re: Labs
        I hate spamming the same comments over again but I see itbsuits you do nicely:
        
        Not to annoy you, but your only basis to try to discredit me is due to the fact you lack intelligence to point out any other mistakes in an otherwise perfectly flawless statement. When you have something intelligent to contribute to the posts here in this article. I highly encourage you to do so troll. Otherwise you have no place here.
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- Anonymous Coward, 8 Aug 2012 @ 6:49pm
  
  Re: Labs
  who cares who used what !!!! it's has absolutely NOTHING to do with you idiots, who have no idea whatsoever what you are talking about, and have never had an original idea,, ever !!!!..
  
  it appears you would not be able to recognise an invention or a good idea, if it fell on your head..
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Bas Grasmayer (profile), 8 Aug 2012 @ 11:53am

Let's hope Dupont and Monsanto end up bringing the current patent system down with them.
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- Wally (profile), 8 Aug 2012 @ 11:56am
  
  Re:
  DuPont actually holds legitimate patents and to my knowledge, has not been a troll lately about them. They hold a large number of chemical engineering patents in polymers such as rubber different types of plastics. I think that the judge failed chemistry in high school to make that ruling.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Aug 2012 @ 6:42am
    
    Re: Re:
    DuPont has played a big roll in filling AmeriKan prisons.
    
    Learn how marijuana became illegal.
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    - Wally, 11 Aug 2012 @ 4:33pm
      
      Re: Re: Re:
      I don't see how I should dignify that as a response due to....
      A) Your lack of citation
      B) You gave words not an explanation given logically
      C) You've done a ton of trolling and don't realize you're the only one laughing.
      D) Judging by how you spell Anerican as "AmeriKan" you are attempting (and failing miserably) trolling.
      
      I do not have the time or the energy any longer to smack the stupid out of you, but if tempted further, I will.
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Anonymous Coward, 8 Aug 2012 @ 11:54am

This is NOT what patents were meant for. You're supposed to have a monopoly on your product. You're not supposed to be able to control research into the field.

If there was ever a case where the patent does not "promote the progress", this is it. They are explicitly impeding the progress.
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- Wally (profile), 8 Aug 2012 @ 12:02pm
  
  Re:
  DuPont deals in chemicals.....there are more than one way to make rubber tires and plastics. DuPont uses industry standards and FRANDs quite reasonably. Monsanto is nothing but a patent troll.
  
  That being said, molecular structures designed to strengthen the durability of certain products is quite patentable. It provides a wide variety of methods due to the wonders of Chemistr because chemistry provides more than one way to skin the cat persay.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Aug 2012 @ 9:09pm
    
    Re: Re:
    Dupont deals in much more than chemicals. This particular article is about Dupont Pioneer, which deals with agriculture and nutrition.
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- Anonymous Coward, 8 Aug 2012 @ 5:46pm
  
  Re:
  It's funny how many experts on "what patents were meant for" are here on Techdirt.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Aug 2012 @ 9:54pm
    
    Re: Re:
    So then what do you suggest patents should be intended for if not to serve the public interest?
    
    Are you suggesting that patents should be intended for something else?
    
    If patents are intended for anything other than serving teh public interest than they ought to be abolished. I don't need to be an expert to posses and express such an opinion and I expect a representative government to proportionately represent my stance on this issue, not just to disproportionately represent the plutocracy.
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Anonymous Coward, 8 Aug 2012 @ 11:57am

I thought patents are supposed to encourage R&D and the development and production of new products but maybe I was wrong.
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- Wally (profile), 8 Aug 2012 @ 12:09pm
  
  Re:
  No, you're actually right. The best examples are in companies like DuPont (oil polymers, rubber) Owen Corning (insulation glass) and BASF (paints and plastics). It's as I've said before; because of chemistry we can tinker with different formulas and make new discoveries.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Aug 2012 @ 3:50pm
    
    Re: Re:
    Because of Chemistry, something I'm sure you know little about (if you're an IP extremist), not because of patents.
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    - Wally (profile), 9 Aug 2012 @ 9:58pm
      
      Re: Re: Re:
      Maybe you're unaware I'm onto trolls like you. If youre not a troll, then let me enlighten you a tad.
      
      1. My father was a chemical engineer at Owen Corning glass so I kind of have a unique perspective on patent laws pertaining to the Chemicals R&D industry. As for my father, he recently retired from teaching Chemistry.
      
      2. Because of chemistry, there are many different ways to make chemical bonds into different products.
      
      3. Chemical R&D is covered under trade secret patents. Best known example is something a lot of my fellow countryman use to unstick bolts, maybe you've heard of it....WD-40
      
      4. I know you're just saying that to get attention and honestly, you got mine. I gave you a well thought out and logical response to your trolling attempt. There's your attention troll, but tread lightly, I have VERY little patients for trolls.
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Vog (profile), 8 Aug 2012 @ 12:00pm

Rather, Monsanto demanded a reasonable royalty for the research-use made by the defendants. Monsanto argued that the use of Monsanto's invention in DuPont's labs and Pioneer's test fields gave those companies an "improper head start" in making the GM seeds.

Response
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Anonymous Coward, 8 Aug 2012 @ 12:03pm

Wait, wasn't this part of the reason patents were created in the first place? Disclose the knowledge in return for a temporary monopoly so that others may look at it but not use it yet? Why else would it have been framed like that if you're not even allowed to use it to build something for after the patent expires?
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- Wally (profile), 8 Aug 2012 @ 12:12pm
  
  Re:
  That creates competition in finding other ways for rivals to manufacture different types of products. Once again I play the Chemistry card.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Aug 2012 @ 3:51pm
    
    Re: Re:
    The chemistry, not the patent, card. Please don't confuse chemistry with patents. You don't know anything about chemistry.
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    - Anonymous Coward, 8 Aug 2012 @ 6:43pm
      
      Re: Re: Re:
      clearly neither to you, or patents..
      [ link to this | view in chronology ]
      - Anonymous Coward, 8 Aug 2012 @ 7:03pm
        
        Re: Re: Re: Re:
        I'm not the one confusing chemistry with patents. and I've taken chem, thank you very much.
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        Anonymous Coward, 8 Aug 2012 @ 7:07pm
        
        Re: Re: Re: Re: Re:
        N/M, Wally seems to be siding with Dupont on this. Maybe I should shut my mouth while I'm ahead.
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        Wally (profile), 9 Aug 2012 @ 10:10pm
        
        Re: Re: Re: Re: Re: Re:
        Wow. The only basis that you decided to argue against me is because of your assumption of me not knowing a damn thing about Chemicals R&D (key words after "R&D....CHEMICALS). You could have easily tried to discredit me based on my statements on patents involving R&D Chenical engineering. But no, you used your last statement proving you are incapable of logical reasonung skills or tgought.
        
        Your statement proves that the only reason you tried to discredit me was based upon YOUR assumption I was taking the opposite side of your baseless opinions. That completely discredits you for this entire article.
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Mesonoxian Eve (profile), 8 Aug 2012 @ 12:11pm

This is the same Monsanto who owns the FDA (so it can legally sell e. coli) and at least one member of SCOTUS.

Appeals don't look promising.
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- abc gum, 8 Aug 2012 @ 1:13pm
  
  Re:
  "so it can legally sell e. coli"
  
  So that's where it comes from .....
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abc gum, 8 Aug 2012 @ 12:23pm

Breaking News - Happening Now - Update - Look At Me
This just in ... from their evil volcanic lair, Monsanto has stated (with pinky finger to mouth) that they will need ....
ONE BILLION Dollars !
Muhahahaha Muhahahaha Muhahhahaha
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- Wally (profile), 8 Aug 2012 @ 2:22pm
  
  Re: Breaking News - Happening Now - Update - Look At Me
  *Scoots over and whispers into your ear*
  
  Uh, sir, now a days...a billion isn't really all that much. Why our front alone makes over a hundred billion on pharma and GM crops alone. We even rip off farmers on the side for using our competitors' products.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Aug 2012 @ 4:03pm
    
    Re: Re: Breaking News - Happening Now - Update - Look At Me
    Give me a billion dollars then, since it's not all that much money anyways.
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    - Liz (profile), 8 Aug 2012 @ 6:54pm
      
      Re: Re: Re: Breaking News - Happening Now - Update - Look At Me
      Wow, I'd not seen a joke fly so high before!
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      - Wally (profile), 11 Aug 2012 @ 2:37pm
        
        Re: Re: Re: Re: Breaking News - Happening Now - Update - Look At Me
        The AC ruined the referential joke. Note I give abc gum full credit for the joke, I just couldn't help myself when I saw that to add on.
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  - Anonymous Coward, 8 Aug 2012 @ 9:12pm
    
    Re: Re: Breaking News - Happening Now - Update - Look At Me
    Since their profits are under a billion, perhaps you would like to restate this? (2010 pre-tax profit $949 million)
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SilverBlade, 8 Aug 2012 @ 12:26pm

Gee...could the judge have possibly been paid off by Monsanto??
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- Anonymous Coward, 8 Aug 2012 @ 5:43pm
  
  Re:
  Anything's possible. Just like you could have been paid off by DuPont.
  
  Neither is particularly likely.
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Anonymous Coward, 8 Aug 2012 @ 12:33pm

Looks like a perfect patent trolling scheme.
1) Genetically modify a plant so that it is unique, but not clearly distinguishable.
2) Patent it.
3) Have people secretly distribute seeds around other people's fields.
4) Sue everyone for patent infringement.
5) $$$
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Anonymous Coward, 8 Aug 2012 @ 12:33pm

Saw this insightful comment
DuPont could have easily done its research in some country where Monsanto had no patent (Mexico or Canada (corn grows in both, and both are an easy drive). But why drive research jobs overseas?

Frightening thought that patents could drive R&D out of the country.
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Anonymous Coward, 8 Aug 2012 @ 12:58pm

Has the case about Lundbeck in europe been covered?
EU has charged them with at least:
- Illegal meetings with copy-medicine producers in a pay-to-delay case
http://www.reuters.com/article/2012/07/24/us-eu-servier-lundbeck-idUSBRE86N11W20120724
http:/ /www.reuters.com/article/2012/07/24/eu-servier-lundbeck-idUSL6E8IOHO520120724
- Compensating the copy-medicine producers for emptying their stores
- Trying to block extention on the generic Citalopram rights (was so absurd that prices hiked by 500+% (up to about 1500 % in one day...)
http://translate.google.com/translate?hl=en&sl=da&tl=en&u=http%3A%2F%2Fwww.bt.d k%2Fsygdomme%2Fprischok-lykkepiller-ti-doblet-i-pris
http://www.reuters.com/article/2012/07/25/us-e u-lundbeck-servier-idUSBRE86O0GI20120725
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Anonymous Coward, 8 Aug 2012 @ 1:09pm

Man this is a very wrong use of patents. You aren't supposed to be able to stop research into your field.
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- Anonymous Coward, 8 Aug 2012 @ 3:12pm
  
  Re:
  "You aren't supposed to be able to stop research into your field."
  
  No pun intended?
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abc gum, 8 Aug 2012 @ 1:15pm

It's not nice to patent mother Nature.
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boomhauer, 8 Aug 2012 @ 1:20pm

lordy
this insanity cannot stand. patents are published to alert the world how to reproduce your technology, and thus fully know about it, and to alert you that you must license it if you want to sell it. it specifically is designed so that your competitors can try to build upon it. How did we get to this point...
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- Anonymous Coward, 8 Aug 2012 @ 4:39pm
  
  Re: lordy
  Crazy entitlement mentality?
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- Anonymous Coward, 8 Aug 2012 @ 5:41pm
  
  Re: lordy
  " it specifically is designed so that your competitors can try to build upon it."
  
  True, if they obtain a license allowing them to do it or the patent is expired. Neither was true in this case.
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  - Anonymous Coward, 8 Aug 2012 @ 7:49pm
    
    Re: Re: lordy
    No, " it specifically is designed so that your competitors can try to build upon it" is exactly what patents are for, the patent needs to expire or be licenced before you can bring something to market, but the whole point is to give the owner of the patent a limited monopoly on their invention. It is todays insanity that has broken the patent system as trolls and IP extremeists are trying to claim that you can own an idea and bill/sue any-one using it. It is not how it was envisaged... it is meant to be about marketing a product.
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- disgusted, 8 Aug 2012 @ 9:32pm
  
  Re: lordy
  how did we get to this point? one word: Lawyers
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Anonymous Coward, 8 Aug 2012 @ 3:04pm

Can DuPont appeal the ruling? or is it just a gift to monsanto and no one can do anything about it?
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Anonymous Coward, 8 Aug 2012 @ 3:06pm

I am appalled, at the legal system right now.
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Anonymous Coward, 8 Aug 2012 @ 5:39pm

"not yet" =/= "never"
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Anonymous Coward, 8 Aug 2012 @ 6:38pm

good on monsanto, they were able to come up with a product so good that get paid for it, without even having to sell it..

so what, obviously that product has great value to some people, enough value that they are willing to steal that idea, and see it themselves... (and make a shit load of money)..

no one went without,, except until this ruling ... monsanto.. after this ruling, no one went without..

it's a 'positive sum gain' by all parties.. (you upset you did not get a cut masnick ?? )..
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Anonymous Coward, 8 Aug 2012 @ 6:41pm

if a power station invents a new type of high efficiency generator, it does not have to sell that design to make money, nor does it want to give that item away for others to make money..

they are in the market of selling electricity, not generators, same applies to companies like monsanto.. they sell products not patents..
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Anonymous Coward, 8 Aug 2012 @ 9:34pm

Not sure why all the fuss. A company holds a patent. Another company is held to infringe the patent. The law provides for either monetary damages, but in no event less than a reasonable royalty. Maybe the royalty is reasonable. Maybe it is not.

In any event, this case is still before the District Court, and will likely remain there so some time as the infringer prepares various motions to the court. Only if those fail would the case be in condition for an appeal to the Federal Circuit.

It should also be borne in mind that the patent at issue contains a variety of claims that are quite different from one another. Without knowing which claims were held to have been infringed, it is not possible to understand what were the contested issues and why they were resolved in the manner they were.
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- Mike Masnick (profile), 9 Aug 2012 @ 1:15am
  
  Re:
  Not sure why all the fuss.
  
  Then you are not fit to comment on the situation, because you have now demonstrated a total lack of awareness of some rather basic concepts.
  [ link to this | view in chronology ]
  - Wally (profile), 9 Aug 2012 @ 10:25pm
    
    Re: Re:
    Hey Mike, be thankfull that the AC troll you responded to actually showed a sign of a somewhat minimal intelegence =P On a serious note, I loved the article :-)
    [ link to this | view in chronology ]
- Ninja (profile), 10 Aug 2012 @ 3:34am
  
  Re:
  DuPont did not release their product in the market. There was no damage done. As Mike said you should get better informed or practice reading comprehension.
  [ link to this | view in chronology ]
Slicerwizard, 9 Aug 2012 @ 6:53am

Wally FTL
"You lengthen your statements with long words to look intelegent"

Clearly, Wally is too "intelegent" to use a spell checker, even though they're built into browsers these days.
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- walmartcartpush (profile), 9 Aug 2012 @ 10:32pm
  
  Re: Wally FTL
  Not to annoy you, but your only basis to try to discredit me is due to the fact you lack intelligence to point out any other mistakes in an otherwise perfectly flawless statement. When you have something intelligent to contribute to the posts here in this article. I highly encourage you to do so troll. Otherwise you have no place here. Someone please help me scan the avatar that matches Slicewizard's. I'm sure he's tried trolling and failed before.
  [ link to this | view in chronology ]
  - Wally (profile), 9 Aug 2012 @ 10:35pm
    
    Re: Re: Wally FTL
    Do you see that little feature Slicewizard? Any statement you make, your avatar stays the same no matter what.
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