i'd like to begin by emphasizing the reasons why the second opinion of this court in monsanto versus mike farley is not controlling here in any import particular and those reasons are first that opinion makes very clear that it is predicated upon for thirty five pact it corrected very clearly a mistake or a slip of the tongue for lack of a better way of expressing it from the first monsanto opinion that said that the patents read on seeds and plants not so in the six zero five patent which is all that's left in this case the four thirty five patent which did include seeds and plants is not involved in this case the second distinction between that case in this case is the first of the month the might farley case was strongly influenced by the fact that the farmer had signed a technology agreement with monsanto not so here that's the reason the case was in mississippi instead of than in st louis there is no monsanto technology agreement here third by far the most important is in this case the scruggs appellants presented to the district court all of the proofs that the court said were lacking in the first monsanto case not only words that substantial evidence on each of the important points that showed that there were more than just genuine issues of material fact that was strongly supported by expert opinions from professor ian ayres yale and any trust  carbon who is a mississippi agricultural economist and course having to do with patent validity issues to begin with dr william folk from the university of missouri who is a plant molecular biologist who description that he did was there any contention made about written description below that the three examples in the six of five patent were insufficient to describe the entire genus yes and one well i'm not not talking about the the the genus whether was sufficient to describe the promoter sequences from the cauliflower virus to whether the combination recollection that two of those examples had to do with the nineteen u s patent seven thirty five us patent and so you know the patent claims the thirty five asked and the nineteen s the one thousand that is not involved in this case so you only have one that actually related to this case yes dr foale went through the written description that assists and all presented an opinion that i think is very much supported by the evidence supported by  review literature but opinion about what if and i'm not i'm not asking you about whether the the promoter sequence of the calipari virus was sufficiently described i'm asking you a different question i'm really if he was this was raised at all and that is the question whether the combination of the promoter sequence with other genetic material which is the subject of this patent was adequately described and my understanding is that there are only three examples of that given in the specification of the six of five that your honor my best recollection of dr folks opinion is that he did consider the entire specification and did offer an opinion that one skilled in the art could not take the specification under the written description test and understand that the invention was in the possession of the inventors and in that made the same opinions with respect to the  been there's nothing in it that shows that monsanto has any rights with respect to the roundup or apply force a purpose sides we've presented substantial evidence that there is either time a bundling leveraging or whatever you want to call it and i suggest that that is an instance where monsanto has ceded the patent grant the second one has to do in this get this is the issue in mcfarland in a sense of having to do with the tie in fact of seeds the germ plasm was produced by the seed partners i think it's important to understand that monsanto set this up in their system from the beginning as two separate products even though they are physically together monsanto made clear in one thousand nine hundred ninety nine when handed to the justice department having to do with the then proposed acquisition of delta and pine land company that it was only in the trade market it was not in the seed market itself and in fact in that of that in support of that position monsanto as many planning documents set up the proposition that the seed and the  products the strait is always owned by monsanto it is licensed to the farmer for a technology fee the seed itself is owned by the seed company which is also a seed partner a licensee of monsanto and it in turn sells the seed in its downstream channel to the farmers so the point is that under the six l five patent there's nothing in the claims there's nothing in the six zero five patent on the other three patents that relate to the bogart cotton trade that it anyway authorizes monsanto to establish what for lack of a bed term is a seed cartel i must say that i mean that monsanto has license agreements exemplars of which are in the record that make it very clear that monsanto has tied up the germ plasm market that is all of  the seed companies anybody and i think the expression by one of monsanto's diploma from this today dry land it was anybody who is anybody in the seed business has a license with us what that has had the effect of doing of course is accomplishing the vision that set forth in monsanto's original planning documents which was not just to be able to go into the market and compete with respect to this product that they claim to have invented but at rather to control the market to the exclusion of all other competing products and fact they've succeeded because the record reflects that with respect to the three freight products that are involved in this case the roundup ready soybean trait the only other product that's out there to that as of the close of the record was s t s soybeans which had only a three percent market share the only competitor with the round up r used in subs of that that is that is one way in which they did it and the reason that this is not controlled by what the court held in my carling is there's nothing here that contained in this patent any of these four paps that in any way restricts the sa seed there's no license agreement as you had in my car only gene sequences are claimed in these patents and that's why this is so different from that far off but the cartel idea that i've just mentioned as  court misunderstood one of the important ones has to do with the attribution of the licensees shares of seed sales to monsanto for purposes of a market analysis and the reason the first place whether there should be attribution is a question of fact that that is set forth in the there's a justice department guideline that says criteria for attribution and in fact what we have is a case where monsanto in its planning documents particularly one called the mase team protection plan and one thousand nine hundred six document which we quoted in our bruce smokes it very clear that the purpose of the grower license approach that monsanto implemented was to put monsanto in a position where it could control the price of the seed to the downstream user that is ultimately the farm and as a quote also in that plan that they were doing this to avoid putting ourselves at the mercy of the pricing decisions of seed companies it's also very important to understand that in old want to go to monsanto is making important presentations to the investment community and and they're what they're doing is showing their strong market share and they the only way that can be is to include the seed partner shares which is what exactly what judge pepper says is that you should not do in fact the third circuit in  it is here also there's a third circuit case the name of which escapes me that cited in our brief that recognizes this premise but it is a question of fact and the overwhelming evidence was that monsanto did have a direct this was the remand from the u s supreme court's eastman kodak case again that this is an issue that has not to my knowledge when addressed in this court in my research has not found any case that addressed the question of aggregation so i would suggest that that the market share should be up to tribute did from the cd partners directly to the to monsanto i would suggest the important part of the case that the district court overlooked its summary judgment consideration was that long series of planning documents from monsanto where they made exactly clear what it was they were going to try to do and it starts in  four with a bt cotton value capture plan the best one in terms of expressing the monsanto view that has been effectively implemented that shows that they greatly ceded the patent strudels expert reports of dr fall which is the only patent the lid of the non infringement experts are found of the original this pound on page four thousand five hundred ten of the joint appendix and the supplemental report is on page fourteen thousand two hundred eighty four of the joint appendix neither one of those reports discusses in any respect or less i've missed it i it the issue of written described believe the issue of written description at all per se and certainly doesn't address the adequacy or inadequacy of the written description of the combination that is  have to go back and look at the briefing belove they certainly raised that as to the promoters sequence and they i believe they raised that as an invalid it is a good shoot that is because there claims the roundup ready seed or whether there is an entire thirty five s promotion sequence and the record there is some confusion i think that pervades even the reply brief record in this regard is absolutely clear the district judge was entirely correct dr roshini skis expert report which can be found on beginning at page six thousand one hundred ninety five of the joint appendix compares the publish raised by law i don't believe that it was raised below but i don't believe that it was raised the court can draw some conclusions about whether it's raised by the blue brief in the great trees in this case but i believe that this issue of the promoter sequence and whether the promoter that is in the round up ready gene is in fact swayed it is entirely clear from the record that it is there is an intact thirty five s promoter from the pollock flower girls say a virus that initiated transcription of this transgender there is this repeated reference to the fact that you know in argentina and great britain and brazil monsanto does it another way and collect the royalties from seed savers i what the record to be entirely clear that month santo does not district court seem to reject that on the grounds that monsanto couldn't force the e p a requirements i would have thought under fashion originators and the in the end then this case that that is not  permissible use of a time arrangement what's your comment on that that's not really addressed my comment on the the tie between the herbicide and the cd is that th requirement can appropriately be enforced by a private party i thought it was pretty clear that it wasn't that was not an appropriate use of a tie for example to enforce an e p a requirement well i'm i first of all there's no issue with enforcement here because it was a license requirement and the one thing that that mr scruggs has maintained from the outset is he doesn't have a license he didn't sign a life so you know he may he may not have any trust standing but in terms of so on the grounds that no other herbicide would satisfy e p a requirements and it was appropriate for them to enforce that the man requirement as part of the agreements that they  had with the seed producers and the farm just like i'm not entirely certain about the state of the record but my understanding is that monsanto in obtaining e p a approval both for the bogart's seed and for the roundup ready he had to plywood certain e p a restrictions imposed under fifty in addition to the patent issues and one of the conditions was that only proper of the label herbicides or that users growers be instructed in the label that only differ of approved label herbicides to be used over the top but in any event that restriction disappeared after ninety ninety eight at the most i mean those those provisions are not all still in force they were license restrictions that apply to the licensed use of c purchased in those two years at most mr a to instruct them in the use instructions to which struck people only to use e p a approved herbicides over the top in any event as i said the notion of to subsist nightly ninety eight for the past eight years there has been no such limitation and i struggling to remember the f t c versus the in the end of dentist i do remember the case i don't recall that there's any i may be wrong but i don't recall that there is a patent misuse issue or a tie issue here that goes to whether compliance with a regulatory requirement by federal agency over a regulated entity that is requirement that the that the the speed labeling i am that restriction i am not even sure that i will undertake to look through the records and advise the court i'm not even sure that it's in the record in this case i do know that a imposed a number of requirements on monsanto particularly in the cotton area where it's required to instruct farmers to establish refuges and sort and so i don't know whether it's in the record i i actually can't really bring the whole thirty two thousand page join appendix to mind my i think our principal submission is i don't believe that the argument that misuse but i certainly could stand corrected by your over this court i don't think that argument was ever make the law or made in this court before the argument has been from the other side well those that restrict may have existed in the ninety six to ninety eight licenses but those licenses continue to be in force today which of course they don't unless somebody has never planted seed bought in those years  claimed to be bound by any of the license provisions and i don't i mean i take your point about the re there is or isn't patmos to use our submission i think is that it's not that it would not have been patent misuse to instruct users as a condition of the license that they only use an herbicide which a itself was patented and covered by a monopoly and there is an interesting legal question about the rules regarding a tile between patented products and as i said there was certainly a the that's the district court construed the license agreement which he didn't sign any of that it claims not to have read it acquired in the fact that if you were going to use like to say over the top that you use roundup which was a patented and be the only one that was approved by e p a under the first i didn't want to make one  comment about at least about the c cartel arguments i mean just stopping for a second on mcfarland the six zero five the fact that the six o five patent claims genes and cells containing those was invalid and the court rejected that because that point had been made or but it was actually the six zero five patent that had been adjudicated to have been in print and the notion that that was a contract breach actually and not a direct infringement action can be in any way relevant because it was patent misuse that is a legit tie between the trades and the germplasm that was alleged to be the patent misuse in that case and this court said quite properly that in the context of products like seeds which produce copies of themselves quote licensing restraints on the use of the goods produced by the license product are not beyond the scope of the pat there is absolutely no evidence in this case whatever one thinks about the relevant markets or market power or anything like that there is absolutely no evidence  top that was seed companies to raise prices monsanto sets of price for its technology and it does not restrain in any way what seed companies charge proceeds and the record shows that among pari there is very great variation because just a minute