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The Legal Aspect of Infringement in Business Dealings

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In 1985, Dr. Klutz Bumpkin of State X discovered a nitrogen-phosphate compound that was inexpensive to manufacture and served as a superior fertilizer for legumes. Dr. Bumpkin's discovery, however, was never patented in State X. Instead, information about the compound, which came to be called Nitrophos, was published in a variety of scientific and agricultural journals worldwide, including several publications of the United Nations Food and Agriculture Organization (FAO) in 1986 and 1987. Several of these journals were on file in the national library of State Y (a small developing country) as well in the library of State Y's two universities. Each of the libraries' records shows, however, that these journals had never been checked out or used by anyone prior to 1992.

In 1988, Omni Chemical Co., a multinational corporation headquartered in State Z, applied for a patent in State Y for the production of a fertilizer called "Fast Grow39," the formula of which included cornstarch and Nitrophos. The State Y Patent Office advertised the application in its Official Journal and no one opposed it. Omni accordingly received the patent. Recently, Green Chemical, Ltd. in State Y began to produce a fertilizer in competition with Omni's Fast Grow 39 called "GreenUp." Omni had a sample of GreenUp analyzed and the analysis showed that GreenUp contained the same cornstarch and Nitrophos formula as Fast Grow 39. Omni, thereupon, brought suit for patent infringement. Green countersued to have Omni's patent revoked.

Has there been an infringement or should the request for revocation be granted? Please explain.

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In this particular case, there has been an infringement of Omni's patent for "Fast Grow 39", due to the fact that Omni applied for and received a patent for its formula, which included cornstarch and Nitrophos in State Y, and Green Chemical, Ltd., began to produce a fertilizer with the same cornstarch and ...

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