Monthly Archives: May 2013

UPDATE: Dannon Activia Lawsuit Dismissed

In September of last year, I wrote on how Dannon called a lawsuit targeting its Activia yogurt “baseless.”   Last week, a Federal judge confirmed that view by dismissing the lawsuit and holding that milk protein concentrate (MPC) was allowed in yogurt and that the FDA’s proposed limitation from 1981 on what milk-derived ingredients may be added to “yogurt” was not in effect.   And in 2004, the FDA stated that MPC could be added to yogurt.

Please see the Court’s ruling here and a complete write-up on this decision here.


Supreme Court Rules for Monsanto on GMO Soybean Case

In a previous post, I wrote about Indiana farmer Vernon Bowman who purchased patented GMO soybean seeds from Monsanto for his “first growth” but used so-called “commodity seeds” purchased from local grain elevators for a second growth.   Under his license, he couldn’t use regenerated seed for future use.  But given the prevalence of the Monsanto seeds, Mr. Bowman knew the community seeds he purchased elsewhere were also likely Round-Up resistant.

For many pundits, this case involved the big question of whether self-replicating products such as soybeans were subject to the legal doctrine of patent exhaustion, which shields legitimate purchasers of patented products from infringement claims with regard to what they do with that product.  But, of course, that doctrine does extend to copying the patented product.  For self-replicating products, these principles are in considerable conflict.  May the purchaser do what they want with the replications or are they infringing copies?

On Monday, a unanimous Supreme Court held that, in Mr. Bowman case, it was the latter.   As Justice Kagan wrote:

Were the matter otherwise, Monsanto’s patent would provide scant benefit.  After inventing the Roundup Ready trait, Monsanto would, to be sure, “receiv[e] [its] reward” for the first seeds it sells.  …. But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly.  And farmers themselves need only buy the seed once, whether from Monsanto, a competitor, or (as here) a grain elevator.  The grower could multiply his initial purchase, and then multiply that new creation, ad infinitum—each time profiting from the patented seed without compensating its inventor.

Just as as significantly, however, Justice Kagan underscored that the Court’s decision was a limited to the particular facts before it and  should not be viewed as applying to all self-replicating products.

Our holding today is limited—addressing the situa- tion before us, rather than every one involving a self- replicating product.  We recognize that such inventions are becoming ever more prevalent, complex, and diverse.  In another case, the article’s self-replication might occur outside the purchaser’s control.  Or it might be a necessary but incidental step in using the item for another purpose.

Please read the Court’s complete opinion here and check out NPR’s nice report on this issue here.

Boston Beer Co. Files Trademark for “Boston Strong”

From the Boston Globe:

Boston Beer Company, maker of Samuel Adams, has filed a trademark for “Boston Strong” 26.2 Brew in the beer category. The trademark would allow for Boston Beer’s annual Marathon beer, “26.2 Brew,” to be renamed with an eye toward supporting the victims of this year’s tragedy.

Boston Beer has long been a sponsor of the Marathon, brewing the race’s official beer. In light of last week’s events, the company has pledged to donate all 2013 profits from the Boston 26.2 Brew to the Greg Hill Foundation to support the victims and their families. The company has also pledged to donate 100 percent of next year’s profits to Marathon-related charities.

And before any cynics question whether the maker of Samuel Adams beer is trying to capitalize on this trademark, Boston Beer has made it known that if the trademark is approved, it “will allow others in the beverage category to use the ‘Boston Strong’ phrase so long as 100 percent of profits are donated to charity.”

Monkey Nuts! – Clear Bags of Peanuts Pulled in UK for Not Warning They Contain Peanuts

Chalk this one up to regulation conformity winning  over common sense.   According to the BBC, the UK’s Food Standards Agency  “issued an allergy alert saying the presence of peanuts was not declared on Booths’ own brand packets of monkey nuts.”  Monkey nuts is the name used in the UK for shelled peanuts.   And the product at issue was a clear bag of  “monkey nuts.”  Because the presence of peanuts was not declared on a clear package of shelled peanuts, the Booth’s supermarket chain recalled the product and issued a notice to its customers who might suffer from a specific peanut allergy.  Call me crazy, but displaying actual peanuts as the sole product being purchased seems like a far better allergen warning than any label that might accompany that product.  Then again, there’s always a slippery slope when regulations are applied differently to some products as compared to others.