> In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed.
I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.
I don't have any problems impugning it at all. They had an opportunity to reject the notion that organisms are patentable (which they are not given that there is a billion years of prior art) and they ruled resoundingly for the case of corruption and Monsanto. Some of the stuff at this URL is overly-inflammatory but it gives you a reasonable picture of why the supreme court would rule the way it did. http://www.whale.to/a/monsanto_revolving_door.html
If you can find that organism without having to sign a contract limiting use of something that didn't exist without high-tech engineering intervention at significant cost, methinks SCOTUS would side with you. He violated a contract, simple.
I can sign a contract to be someone's slave, but that contract isn't valid since it contradicts the law.
We just had a ruling that the first sale doctrine is in fact real for copyrighted items and that they can't be controlled after they were sold once. They're selling an organism that makes copies of itself. The onus is on them to control that by engineering the plant to produce non-fertile seeds. If they can tailor make a plant to resist roundup why can't they make it not produce infringing copies of itself?
Imagine if Hollywood sold DVDs or Blurays that spat out two DVDs after you played and then ejected the movie. And you were required to destroy one of the copies lest you run afoul of their copyright. Wouldn't they get laughed out of court?
> which they are not given that there is a billion years of prior art
I'm not a Monsanto supporter by any means, but there is no prior-art for a tailor-made organism, is there? The genetically-modified version of the Monsanto soybean has no prior-art. Unless you consider all soybeans as prior-art.
The problem here is that the patentability covers even extraction methods. You find a gene in a plant, you come up with a way to extract it and now you "own" that gene. Even though you didn't discover it nor make it or anything. If the patents ONLY covered tailor made genetics I might find it a bit less onerous but the patentability is VERY broad.
Also they didn't tailor-make the organism. They took a "regular" soybean and added some resistance to it. Had they invented a monsanto bean from scratch that had the resistance then sure.
Furthermore there are people who are infringing on Monsantos patents by virtue of Monsanto soybeans freely and openly spreading their genetic material through the air.
Imagine if the reprap people had designed their printer to be 3d printed (which they did) and then patented it and tried to sue people for using their reprap to 3d print the parts for another reprap. Pretty shitty huh? Now imagine that the reprap came pre-configured to print reprap parts and as soon as you plugged it in it started making them. Along with a note that said "look this printer is going to print parts and there's nothing that can be done about it. But if you want to use those parts, you have to send us a check for $500"
Why does something that's utterly ridiculous in one domain seem perfectly acceptable in another?
> The problem here is that the patentability covers even extraction methods. You find a gene in a plant, you come up with a way to extract it and now you "own" that gene. Even though you didn't discover it nor make it or anything. If the patents ONLY covered tailor made genetics I might find it a bit less onerous but the patentability is VERY broad.
I was talking about the latter (owning a modified gene), but I completely agree that it is ridiculous to "own" a gene just because you were able to identify and extract it. I recall many years ago there was a row when a bunch of biotech firms were trying to patent the genome for Basmati rice and Turmeric. The Indian government was not happy because there were native plants and it would be ridiculous to pay licensing fees to some biotech firms in the US to grow plants that were native to the country.
>You find a gene in a plant, you come up with a way to extract it and now you "own" that gene.
That depends on what sort of a patent you attempt to cover it under. If you cover it under a molecule patent, (like what myriad is doing) then that's legit, but your patent only covers the PCR product. It's pretty trivial to break such a patent.
Yes, all soybeans are prior art by virtue of countless generations of selective cultivation by unincorporated humans which has resulted in the soybean which Monsanto has modified in their quest for profit and market domination.
No, D9u, by planting the patented seeds, the farmer has made himself a manufacturer of the patented seeds. Again, I don't personally believe that we should have patent protection on anything, but it's rather clear that this is exactly what patents protect against. The exahustion of the patents upon first sale merely means that the patentholder cannot exercise any attempts at controlling resale of the original item. The second generation of seeds is not the original item.
An analogy would be as such: You buy a computer chip. Exhaustion means that the patentholder cannot restrict you from breaking it open and examining the chip with a microscope, or even making a clone that presents the same API to the pinset, or reselling the original chip without compensation to the original manufacturer. What would be against the law, though, would be to take the knowledge you get from the chip, make a copy of large sections of it, and then resell this.
They had an opportunity to reject the notion that organisms are patentable
Did they really? My understanding is that they would only be able to do this if Mr Bowman had tried to challenge the validity of the patent on that grounds. While the link to the decision is broken, the article makes no mention of him arguing against the validity of the patent at all.
Right. And that's because the patentability of a seed or plant was decided by SCOTUS in 2001 in J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124 (2001). People who keep hoping for a ruling from SCOTUS that organisms aren't patentable are living in the past.
The supreme court routinely reaches all kinds of weird decisions based on questionable legal precedent and theory. For them to be so careful to not overstep here is suspect.
I don't think this will change your thinking much but, for what it's worth: I am a lawyer, and I work day in and day out with other lawyers (including some federal judges) with no stake in this case. I've yet to speak to a person who disagrees with this opinion, at least as a legal matter. I for one think it's absolutely correct given the extrinsic legal landscape that exists today (i.e., congressional statutes, relevant precedent, etc.).
(Of course, the nature and existence of a distinction between a "legal matter" and a "moral matter" is a famously controversial issue ... but that's a different kettle of fish altogether.)
I'm going to assume that anyone who thinks a unanimous decision by the Supreme Court is "suspect" has a lifetime supply of tin foil hats in their bunker.
Cases related to intellectual property of genetic material and/or code (which has a dual nature and can be copyrightable or patentable in different situations) are notoriously difficult for judges and justices to sort out.
When judges do not have a personal interest in code (like Judge Alsop had, at least a little bit), and no personal interest in the nature of genetics and biology, it's simple for an Oracle or a Monsanto to make reasonable sounding (but completely wrong) arguments and for the court to accept them.
I don't think critical thinking is effective without at least a little personal investigation into the subject matter. Judges depend on reading opposing arguments and distilling the essence of the conflict from that, but in some subjects you can't get an understanding of the essence of the conflict without a neutral investigation of the subject itself.
Go right ahead. I have no bunker and no tinfoil hats. But don't let reality get in the way of a narrative you'd like to tell yourself.
If you don't want to believe that it's possible for a government to be corrupt, or perhaps our government in particular that's fine. I can't stop you. But it's silly to assume that I'm a crazy person simply because I find it plausible that corruption (which is a thing proven to exist in the real world we live in) could happen inside the government as well as outside it.
I certainly believe it's possible for government to be corrupt. I don't have any problem with people calling the motivations and actions of individual officials into question. But I think it's far-fetched to suggest that 9 judges with diverse backgrounds and with positions for life have all been corrupted on a given issue.
Why would they reject such a notion? Plant patents have been around for a long time (since the 30s). Honeycrisp apples (which are a product of the university of minnesota) and Maui Gold pineapples, for example, are IP-protected organisms.
You can't patent organisms, in general. You can, however patent plant varietals that are the product of breeding programs. For the supreme court to overturn this would be a very edgy violation of the separation of powers. The constitution gives congress the authority to define IP and set copyright and patenting law, not the supreme court.
Considering the agreement he had signed if anything it was an interesting attempt to vacate that agreement. As in, he attempted the "Patent exhaustion" (first sale) as a means to circumvent paying to use a product. Since there are patent unencumbered varieties available I think its a good decision.
In this case, he sprayed the crop grown from the seed bought from the grain elevator with roundup. This is how everyone knew that it was in fact roundup ready.
It would be interesting to see a case where The seed were used as if they were conventional soybeans, especially if the farmer didn't know that they contained patented genes.
According to my (inexpert) reading of the opinion, it wouldn't matter and the result would have been the same. But maybe there are other defenses that could have been employed if the facts were different. Certainly the policy argument would look a lot different, even if the legal argument remained the same.
I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.