Don't steal the steelpan

The United States Patent and Trademark Office (USPTO) has revoked a patent for the "Cycle of Fifths Steel Pan" after an inter partes request for re-examination filed by the Government of Trinidad and Tobago.

The request led to re-examination of the patent granted to Trevor King (Jamaica, NY):

• US Patent 6 750 386 -"Cycle of Fifths Steel Pan"

as well as the patent granted to George Whitmyre et al:

• US Patent 6 212 772 - "Production of a Caribbean Steel Pan"

The third patent of interest, granted to Wheeler Matthews, was US Patent 5 973 247, "Portable Steel Drums and Carrier." However, this patent had lapsed due to non-payment of fees.

In the "Cycle of Fifths Steel Pan" patent, the Government of Trinidad and Tobago challenged the claim for inventiveness pertaining to an arrangement of notes on the surface of the steelpan, the technical solution offered being that this made the playing of the steelpan easier. This claim was challenged for novelty and inventiveness - it was shown to be well-known and anticipated in the published local work of pannist, Anthony Williams (pictured at right).

The USPTO Inter Partes Re-examination Certificate will identify which claims can be confirmed as patentable, which have not been examined and which are to be cancelled, disclaimed. In response to this request, the Inter Partes Re-examination Certificate cancelled all claims effectively invalidating the patent.

The "Production of a Caribbean Steel Pan" patent, which claimed a hydroforming production method for a mass production of steelpans, was confirmed. Perhaps this second patent raises questions not of "industrial application" but of misappropriation of a traditional industry and knowledge. The steelpan itself emerged from the history and circumstances of slavery and linguistic and cultural displacement in the region. It was such an important means of communication and cohesion between slaves that it was prohibited by the colonisers in the late 19th century. The question of mass production appears to under-estimate the greater significance of the production itself.

Monsanto's Blooms and Booms

In the current climate of recessions and dwindling sales figures, agricultural companies are enjoying a bumper crop.

According to yesterday's Financial Times, Monsanto is the top seller of corn seeds in US and Brazil, where there is huge demand for Roundup-Ready soybean in particular. The corollary of this is that there was a 25% increase in the volume of herbicide in Brazil last quarter. According to the FT, "High food prices are inspiring some farmers to plant extra acreage and drench valuable plants in even more Roundup than usual to avoid crop losses.

Concerns, from both farmers and from consumers, over the risks of contamination are well-known. Indeed, these risks are part of the background to Europe's stance on GM, the subject of a complaint to the WTO by the US, Canada and Argentina.

One problem for farmers is that classical patent protection of GM seeds can lead to costly infringement proceedings, either through drift or through the usual practices of saving and re-using seed. In other words, the business models of patented seed industries are contrary to established farming practices, as the recent case of Homan McFarling v Monsanto Co shows. On the question of saving seed, McFarling's lawyers argued that patent law does not allow Monsanto to control the natural products (future seeds) from the seeds legitimately purchased and planted by McFarling. But the Supreme Court denied the petition for writ of certiorari and let stand the lower court ruling that second-generation seeds were copies, the saving of which amounted to unlicensed use of the patented invention.

The intrusion of multinational corporations upon local farming practices and communities was the subject of a 25th anniversary Pesticide Action Network (PAN) meeting in Penang, Malaysia in December. At the meeting, food security campaigners raised concerns over the concentration of sales within a small number of MNCs, including Monsanto.

Anil Netto reports that vertical integration, where the corporatisation and propertisation of agriculture dominates all stages in the food production cycle: "from the development of proprietary strains of DN and the sales of seeds to farmers right down to the distribution and retail sales of food products in supermarkets and hypermarkets." Monsanto recently purchased Agroeste Sementes, a Brazilian corn seed company.

Javier Souza Casadinho, Centre for Studies on Appropriate Technologies in Argentina, has been raised concerns that such activity leads to a concentration of market control in those MNCs: "The transnational corporations are buying up companies that have the potential to create added value ... [and] entering into contracts with food producers that will determine what is produced, how it is produced, for whom it is produced and at what price and quality."

In the same article, Antonio A Tujan Jr, International Director of the Ibon Foundation Inc, describes vertical integration as turning the market into a sellers' market, compromising the choice for consumers. This is very similar to the concerns raised in the GM debate in Europe, where the risk of contamination is conceptualised as a serious risk to the conditions for consumer choice of organic, conventional or GM products.

What is at stake is not only the limits of the product but also the limits of the markets that preserve consumer choice. And in technologies in living organisms, those limits are sometimes difficult to define.

Patent Injunctions - Pulling Out the Stops?

Last week the US Supreme Court decided to re-examine the use of court injunctions in intellectual property proceedings, particularly in the context of patent disputes. Arising originally out of the eBay litigation, the Supreme Court will be considering whether the application of injunctions in patent disputes is mandatory, as decided by the federal patent court, the Court of Appeals for the Federal Circuit, in the eBay case.

While it is reported that some powerful interests, including the pharmaceutical industry, are in favour of mandatory injunctions, regarding some industries the real concern is that mandatory injunctions will shut down production during the course of proceedings. In other words, if an injunction is granted on one particular patented technology in a product (where the products in question often involve numerous and individually patented technologies), then the whole production of that good will be halted until the dispute is resolved. Aside from the obvious and immediate commercial implications, if the ordering of injunctions is deemed mandatory and the courts no longer have discretion as to whether to stop production, the consequences for high technology businesses may be such that they impact upon the very processes of innovation in these industries themselves.

As Patti Waldmeir suggested in last Wednesday's Financial Times newspaper, "Some patent experts (not normally an excitable lot) have said it could turn out to be the most improtant patent case in a century ... Abortion may be what captures the headlines but the court knows that patent policy touches Americans where it really matters: in their innovation economy."