
US Supreme Court to Hear Monsanto Seed Patent Case - cpeterso
https://www.nytimes.com/2013/02/16/business/supreme-court-to-hear-monsanto-seed-patent-case.html
======
kochb
"Mr. Bowman said that before his case, Vernon Hugh Bowman v. Monsanto, 11-796,
was taken pro bono..., he had spent $31,000 on legal fees and handled much of
the legal research himself, using a computer at the library because he does
not own one."

There's a real farmer for you. Don't know anything about law? Doesn't matter,
can't be too hard, I'll figure it out.

------
deepGem
Monsanto uses the terminator gene technology to stop the seed replication
beyond first generation. So why would they fight to patent a seed. If they
want farmers not to use the seed beyond the first generation, they've already
done it. What they are now trying to do is to put a 'blanket patent law'
that'll prevent farmers from buying seeds from anyone else for any purpose
whatsoever. It's like me having to pay royalty to Apple for buying a used
macbook :).

Also, the analogy to software piracy given in the article is totally flawed.
Software is written so that it doesn't self replicate (unless it's a virus),
however an organism's default behaviour is to self replicate. Isn't this such
a simple argument to win ?

~~~
dionidium
_Monsanto uses the terminator gene technology to stop the seed replication
beyond first generation._

No, they don't [0]:

 _Because some stakeholders expressed concerns that this technology might lead
to dependence for small farmers, Monsanto Company, an agricultural products
company and the world's biggest seed supplier, pledged not to commercialize
the technology in 1999.[2] Customers who buy patented transgenic seeds from
Monsanto must sign a contract not to save or sell the seeds from their
harvest,[3] which preempts the need for a "terminator gene"._

Also, regarding this:

 _It's like me having to pay royalty to Apple for buying a used macbook :)._

No, this is like your Macbook being able to make copies of itself, so that
after you buy one, you've got a new copy every year for the rest of your life.

[0]
[http://en.wikipedia.org/wiki/Genetic_use_restriction_technol...](http://en.wikipedia.org/wiki/Genetic_use_restriction_technology)

~~~
bhickey
_No, this is like your Macbook being able to make copies of itself, so that
after you buy one, you've got a new copy every year for the rest of your
life._

The degree to which a business model is ill-conceived imparts no duty to other
actors.

~~~
dionidium
This is one of those things that sounds sort of clever but is obviously just
nonsense. Lots of things are _possible_ that we limit or prohibit because it's
desirable that we do so.

If the creation of this sort of tech is desirable -- and I'd argue that the
market really, really wants this stuff -- then there's nothing weird about
creating legal mechanisms that support it.

~~~
einhverfr
But patent law exists largely to balance the needs of the innovators with the
needs of the public to create better generics over time. This is far more the
case, regarding the creation of better generic products, there than with
copyright, but copyright serves the same balance as well. An additional aspect
includes the rights of the consumer and balancing these as well.

The problem I have here is that the patents are being used in a way here which
serves only the innovator, and precludes better generic products over time.
This fundamentally unbalanced by corporations which are greedy for both power
and money, and in an area where the rights of the consumer are particularly
important, namely food supply.

So it isn't enough to say:

> If the creation of this sort of tech is desirable -- and I'd argue that the
> market really, really wants this stuff -- then there's nothing weird about
> creating legal mechanisms that support it.

I think one also has to add, "provided that the rights and interests of other
parties are respected and supported as well." That's what's wrong with
Monsanto in this case (as well as Prometheus in their failed case last year,
and the breast cancer gene patents, etc).

------
belorn
With businesses whose sole businessmodel depend on government to grant an
state enforced monopoly, one should really ask if government shouldn't take a
more active part in determining the benefit and cost of said model.

When ever government go out and try to influence a market, they commonly do a
cost-benefit analyzes. If they add a new regulation regarding health concerns
in food processing, it is assumed that they do some form of balancing of cost
and benefits. It is also assumed that we do not use the same cost and cost-
benefit analyze they have laying around from the 19th century. Most people
assume that what ever was true a few hundred years ago might have changed in
the years and thus a new check regarding cost and benefits to society is in
order.

When government goes out using patents to influence the market to produce more
inventions, they don't do a cost-benefit analyzes. They barely even use the
200 year old check regarding previous invention, obviousness and discovery, as
the number of inventions has increase beyond what is human possible to check.
They just grant the same sized 20 years state enforced monopoly to anyone who
ask, and hope that any problems will be solved by the court system.

The core of this case is how one should read the patent-exhaustion. It really
shouldn't be about that. It should be about how and if the government should
give aid to an company that invented, produced and successfully sold a grain
that they modified with a discovered gene. It should be about the check and
balance of the actions of government trying to influence the market with
monopolies in an effort to encourage more inventions/discoveries regarding
gene modified plants.

------
speeder
Personally I believe that patenting genes in first place is overall a bad
idea...

But yet, I see the importance of biotechnology, specially because I believe
bioengineering might be useful, actually using biological things to make
constructs, like living buildings, vehicles, batteries, and that sort of
things.

On this case, I hope monsanto loses. Because they winning would set a too
dangerous precedent.

Yet, they losing, would not damage biotech too much, you could always invent
biotechnology that cannot be easily reproduced.

My father is friend of a guy that invented a special mix of microbial and
fungal life that improve composting technology in a very interesting manner,
and for him, there is no need to make crazy contracts about people not
reproducing what he sells, because he ships them in a way that you can use the
living product on your composting solution, but you cannot replicate the
product (with enough effort, you CAN replicate it, but the replica is
imperfect and the performance is not the same, so if you want 100% of
performance, you must buy more of it), it is actually very clever and
interesting.

This sort of thing, I would think it is maybe good. But using legal means to
prevent normal biological behaviour from happening, it is very bad idea, and
quite dangerous in what sort of havoc it might unleash.

~~~
glabifrons
"Personally I believe that patenting genes in first place is overall a bad
idea..."

If they actually developed the genes themselves, I'd lean towards the thought
that they should be patentable.

However, in this case (and in every case that I know of involving Monsanto)
they've simply patented something they _discovered_ , not something they
_invented_.

The gene in this case is the "Roundup Ready" gene... which comes from a
bacteria they discovered that was living in the soil they saturated with their
Roundup poisons. They extracted this gene and inserted it into the plant by
way of a virus... so they didn't invent the insertion method either (the virus
did). Yes, they had a guiding hand in which gene got transferred, but that's
process and that's not what they're suing over.

In other cases, they simply patented genes that they never even interacted
with, such as the large hog gene. This is fundamentally broken... I'm not sure
what happened to the rules against patenting nature/life.

As to the merits of this case, I can see it going either way - the arguments
are definitely novel.

Personally, I think:

1\. Patentability of discoveries (not inventions) should be examined closely
(and discarded!). There used to be rules against patenting nature/life... as
stated above, I'm not sure what happened to those (IA-quite-obviously-NAL).

2\. SCOTUS should consider that Monsanto sells a product that is intended to
be used to replicate itself - then suing people who use the end product as
nature intended for further replication. Consider if this were a seed that
produced a seedless fruit... you'd have to be a bit more creative than
following nature to replicate the plant (grafting and such). That effort
wasn't applied here at all.

3\. SCOTUS should examine the fact that Monsanto has completely lost control
of their product and that it should be viewed as an infection.

To elaborate on that last point, imagine you're an organic farmer and you go
through an extreme amount of effort and cost to ensure you have truly organic
seed. You plant this seed on your land that has been organic for >3 years
(requirement for getting a USDA Organic label, as I understand it) and grow
your crop. Bees come to gather nectar and in doing so, pollinate your crop
(nature at work). Unfortunately, there's another farm within range of the bees
that has Monsanto's crop growing, and your crop gets fertilized with the
neighbor's pollen. The product of your hard work now contains Monsanto's
genes, they come on your property without your permission, take parts of your
crop for analysis, then 2 years later (ensuring you have no proof to fight it)
they launch a lawsuit against you claiming you stole their product and sue you
into bankruptcy. EDIT: Not only have you lost your current crop and your
money, but you've also lost your organic label since you now have a non-
organic crop growing in your fields (even though the non-organic part is only
the product of the plant and not the plant itself).

This is not a theoretical possibility, this is their MO. They're wiping out
all sources (crop-reuse methods, included) of seed so all farmers will be
forced to buy seed from them (they also control the majority of non-GMO seed,
they've been buying up smaller seed companies for eons).

Edited for formatting and added one line to the 2nd-to-the-last paragraph.

~~~
skosuri
It's hard to know where to begin. You make some of the most difficult genetic
engineering projects in the world sound like you can program it on your
computer. You can't. What Monsanto has done and does now is difficult. Most
transgenics don't work as you expect. It is most certainly an invention, not a
discovery. With regard to your points:

1\. There are already rules here; in terms of non-transgenics and natural
sequence, the case you should look at is myriad, which is also being
considered by the supreme court. I agree with monsanto here, and against
myriad on diagnostics of natural variants.

2\. Let me guess, you are not a farmer. Most seeds aren't saved "as nature
intended". This is true of non-transgenics as well in the form of hybrid
seeds.

3\. Ugh...

Finally, regarding your last "scenario"; can you name an actual similar event
where what you saying is even close to true (please don't link to the Percy
Schmeiser case)?

~~~
glabifrons
Yes, what they have done is difficult, the process is what should be
protected, not the product of the use of the product, nor the contamination
caused by the product.

2\. No, I'm not a farmer, but my ancestors were, and the family farm is
surrounded by other (current) small farmers. The "field corn" (intended for
cattle feed) that grew on my grandfather's farm in the '70s-'80s was far
sweeter than any engineered "sweet corn" I've had from any supermarket for the
last 25+ years. This corn was grown using the old methods which I've seen many
claim (as you have) are no longer used. Maybe the industrialized farms aren't
saving their old seed (because they're likely all using GMO seed), but the
small (family) farms still are (especially organic ones). Why wouldn't you use
this method? Why sell something you have to re-purchase, especially when,
after several seasons, the seed is effectively acclimated to your environment
and more productive? (of course you can't use this method if you're using GMO
seed)

"3. Ugh..."

[http://www.npr.org/templates/story/story.php?storyId=1290104...](http://www.npr.org/templates/story/story.php?storyId=129010499)

TL;DR: 86% of "wild" canola is GMO, most of which contain multiple engineered
genes (multiple generations of contamination). At this rate, it won't be long
before "wild" canola is extinct.

[http://articles.latimes.com/2012/feb/17/local/la-me-gs-
organ...](http://articles.latimes.com/2012/feb/17/local/la-me-gs-organic-
farmers-sue-monsanto-to-stop-patent-suits-20120217)

[http://www.npr.org/blogs/thesalt/2012/02/27/147506542/judge-...](http://www.npr.org/blogs/thesalt/2012/02/27/147506542/judge-
dismisses-organic-farmers-case-against-monsanto)

This will likely be viewed by those supporting Monsanto as BS, but I'll
include it anyways:

<http://www.thefutureoffood.com/>

Countless heritage species of corn grown by families in Mexico are GMO
contaminated... effectively wiping them out.

~~~
jrkelly
_Maybe the industrialized farms aren't saving their old seed (because they're
likely all using GMO seed), but the small (family) farms still are (especially
organic ones). Why wouldn't you use this method?_

Because it's much less efficient for many crops. The technology of saving
seeds wasn't unseated by GMOs in the 90s, it was unseated by hybrid crops in
the 20s.

"Today, hybrid seed production is predominant in agriculture and home
gardening, and is one of the main contributing factors to the dramatic rise in
agricultural output during the last half of the 20th century. In the US, the
commercial market was launched in the 1920s, with the first hybrid maize. All
of the hybrid seeds planted by the farmer will be the same hybrid while the
seeds from the hybrids planted will not consistently have the desired
characteristics. This is why hybrid seed is constantly repurchased by growers
for each planting season."

<http://en.wikipedia.org/wiki/Hybrid_seed>

~~~
glabifrons
I find this just as interesting and relevant:
<http://en.wikipedia.org/wiki/Seed_saving>

This process is certainly not extinct.

The Legality section has some tidbits that might actually be useful in this
case.

~~~
jrkelly
Well no tech really goes extinct. Kevin Kelly has a great piece on it:
[http://www.kk.org/thetechnium/archives/2011/04/technologies_...](http://www.kk.org/thetechnium/archives/2011/04/technologies_do.php)

It just moves to hobbyists / fringe. Mainline agriculture hasn't saved seeds
for a long time (coming up on 100 years) for many crops due to the improved
performance of hybrids. Seed saving is brought up w/r/t GMOs because it makes
for a better narrative. People actually originally attacked hybrids with the
same approach ... farmers wouldn't be able to save seeds since their saved
seeds would be worse than the hybrids.

------
ivan-p
This is a must watch.

<http://en.wikipedia.org/wiki/The_World_According_to_Monsanto>

You can find it on youtube <http://www.youtube.com/watch?v=fvGddgHRQyg>

------
dchest
<http://news.ycombinator.com/item?id=5195676>

~~~
mjn
Thanks for the link. The first comment on that version of the discussion is
informative, and gets to the heart of the case, which is somewhat more
specific than a lot of the commentary (though other issues are clearly
implicated).

The core of it is whether the Supreme Court will read the patent-exhaustion
doctrine narrowly or broadly. The traditional application of patent exhaustion
allows you to combine a patented part with other standard equipment, if the
patented part was purchased legally. So, for example, you can buy a CPU and
then assemble it with other electronic components into a larger device,
without getting a second patent license for the larger device.

The farmer here is arguing that buying a seed and having it reproduce should
fall under patent exhaustion, because growing seeds and having them produce
more seeds is something that, in farming, happens routinely by just adding
"standard equipment" such as soil, fertilizer, and water. Therefore no second
license should be needed for continued routine use of the legitimately
purchased initial product. Buying a license to the seed should imply, by
patent exhaustion, the regular use of the seed for all things seeds are
normally expected to do, including planting them and harvesting their
offspring. The counter-argument is that in the CPU example the original
purchased part is still enclosed in the larger device, whereas in the seed
case the offspring seeds are not a superset of the original seed, so the
result is actually a copy, more like duplicating the CPU (which would need a
new license). The troublesome part with making the analogy work either way is
that the seed duplicated _itself_ as part of its normal functioning, which
CPUs don't normally do.

Viewed that way, the case has interesting implications for the future patent
situation around self-replicating robots.

~~~
DannyBee
Note that the first comment misses an important point that is clear in the
briefs:

He did not go out and deliberately buy 2nd generation roundup ready seeds. He
went out and deliberately bought 2nd generation commodity seeds. Simply
because of market penetration, most of the seeds ended up being roundup ready
seeds.

He discovered this because he sprayed them with Roundup.

I can't think of a more clear case of patent exhaustion. They would have to
remove patent exhaustion from self-replicating technologies to make this not a
clear case.

Note 2 things:

1\. On average, the supreme court doesn't take cases to uphold them (there is
no point in doing so). There were at least 4 votes of justices who thought it
was worth hearing the case.

2\. Monsanto has a _very_ simple solution: contracts with farmers.

------
untothebreach
Anyone else getting a ssl warning?

~~~
whatshisface
Check your computer's date/time, that has been the cause of false ssl
negatives for me in the past.

------
wglb
So tptacek--will you be testifying there?

------
mtgx
Microsoft is supporting Monsanto here? Seriously? If they are supporting
_this_ , which seems to me that it has very little to do with them (to say the
least) then we should expect Microsoft to fight hard against any sort of
meaningful reform of the patent system.

[https://www.techdirt.com/articles/20130218/02022922012/supre...](https://www.techdirt.com/articles/20130218/02022922012/supreme-
court-set-to-hear-case-whether-not-planting-legally-purchased-seeds-infringe-
monsanto-patent.shtml)

~~~
ubernostrum
Microsoft cares, and the Business Software Alliance cares, because one
potential impact of the ruling would be that the license agreements which come
with basically all proprietary software would be rendered null with respect to
their restrictions on copying (the argument that IP protection is exhausted at
sale of a seed can easily extend to the idea that it expires at sale of a
piece of software).

See SCOTUSblog for more:

[http://www.scotusblog.com/2013/02/argument-preview-stakes-
ar...](http://www.scotusblog.com/2013/02/argument-preview-stakes-are-high-in-
dispute-over-rights-to-genetically-modified-seeds/)

~~~
tellarin
But the intended use of a piece of software is not to replicate itself (unless
it is a virus). While the intended use of any seed is obviously to grow and
reproduce.

Hope the distinction is clear enough for the court. And this is a patent case,
not a copyright one.

On the other hand, I do think that copyright law needs to be revised in the
case of digital goods that can be trivially copied/duplicated.

------
beedogs
Why do I get the feeling SCOTUS will render a terrible decision in this case?

~~~
DannyBee
As mentioned, the supreme court doesn't really take cases to uphold them.
Granting cert means at least 4 justices wanted to hear the case, presumably to
reverse it (it could be that they they _really_ wanted to say something about
it, but that seems like it would not really apply in this case). Monsanto did
_not_ expect the supremes to take this case.

~~~
btilly
If you want to be optimistic, you might look at
[http://en.wikipedia.org/wiki/Association_for_Molecular_Patho...](http://en.wikipedia.org/wiki/Association_for_Molecular_Pathology_v._Myriad_Genetics)
and hope that some of them want to get a broad ruling on the patentability of
genes.

~~~
einhverfr
Myriad's an interesting case. I suspect their lawyers have their work cut out
for them given Prometheus v. Mayo (recently decided). I don't see how Myriad's
patents can survive Prometheus.

