Supreme Court rules for Monsanto in case against farmer(npr.org)
npr.org
Supreme Court rules for Monsanto in case against farmer
http://www.npr.org/blogs/thetwo-way/2013/05/13/183603368/supreme-court-rules-for-monsanto-in-case-against-farmer
88 comments
The problem is, if a plant can do it, why is it patentable as an invention?
I'm fine with patents involving biology in general. And I'm fine with the court blocking you from creating patented devices via some Rube Goldberg machine to try to absolve yourself of responsibility.
But we're talking about a plant sitting by itself with no external input.
Nothing a plant is capable of doing should be novel or non-obvious. A patent on creating the GM seeds with human tools? Sounds great. A patent on cell division copying whatever lies in front of it? Ridiculous.
I'm fine with patents involving biology in general. And I'm fine with the court blocking you from creating patented devices via some Rube Goldberg machine to try to absolve yourself of responsibility.
But we're talking about a plant sitting by itself with no external input.
Nothing a plant is capable of doing should be novel or non-obvious. A patent on creating the GM seeds with human tools? Sounds great. A patent on cell division copying whatever lies in front of it? Ridiculous.
If the plant had spread itself all over his field on its own accord, you might have a point, but that isn't what happened. The farmer found seeds, identified them as premium seeds and then cultivated them with the intent of cashing in on the value monsanto added. If you are blanket anti-gmo (not saying you are, just speaking to anyone that is), perhaps you should look into why the farmer thought these seeds were worth planting to begin with and be afraid of that instead. :)
First off, I'm ignoring profit because that has nothing to do with whether there is patent infringement.
Now, we have to look at what the farmer did. He didn't have some sneaky process of recreating Monsanto's genetic injection but pretending he wasn't aware of what the result would be. He wasn't in any way following the blueprint in the patent to replicate the described device. He was only planting seeds.
Basically I'm looking at this from a couple directions. On the intent front, he definitely intended to get himself more of these seeds. But on the intellectual property front, he did not need to use the information in the patent to get more seeds.
If you have a patent on a device carved from wood and someone else carves it, blatant infringement. If someone else has a tree that unguided creates the same shape, you shouldn't be able to go after them. Even if you invented the tree.
Now, we have to look at what the farmer did. He didn't have some sneaky process of recreating Monsanto's genetic injection but pretending he wasn't aware of what the result would be. He wasn't in any way following the blueprint in the patent to replicate the described device. He was only planting seeds.
Basically I'm looking at this from a couple directions. On the intent front, he definitely intended to get himself more of these seeds. But on the intellectual property front, he did not need to use the information in the patent to get more seeds.
If you have a patent on a device carved from wood and someone else carves it, blatant infringement. If someone else has a tree that unguided creates the same shape, you shouldn't be able to go after them. Even if you invented the tree.
Good points. The only thing i disagree with is "unguided". Instead of carving with a knife monsanto carves with dna. Despite that philosophical difference in view from you, Im not sure how i feel about the patent thing (Im not a fan of software patents either and this seems similar), however there is a layer of hysteria in the public when it comes to this subject that usually prevents issues such as patents from even being discussed.
edit: retried post further down
sry, Im confused on what you are trying to say now. I know its not the case, but it sounds like you are suggesting that monsanto planted the seeds in his field.
Okay sorry let me redo that post:
>The only thing i disagree with is "unguided". Instead of carving with a knife monsanto carves with dna.
What I meant was the original creator of the plant did the carving/guiding but the farmer is only growing it in a relatively ordinary manner. Perhaps he sprays some weed killer on it but he's not elaborately guiding the plant. (An example of such guiding would be making a topiary in a patented shape.)
>The only thing i disagree with is "unguided". Instead of carving with a knife monsanto carves with dna.
What I meant was the original creator of the plant did the carving/guiding but the farmer is only growing it in a relatively ordinary manner. Perhaps he sprays some weed killer on it but he's not elaborately guiding the plant. (An example of such guiding would be making a topiary in a patented shape.)
How did the farmer separate the premium seeds from the rest?
According to the article he already knew what they were... so he didnt need to separate them. I think he would have won the case if he didn't actually know he had planted them to begin with.
I wonder if this says anything about the ruling we can expect from the court on the Myriad Genetics case. The New York Times summary implied that the farmer in question had some knowledge that he was using seeds in a way that might infringe, if you buy the argument that organisms can be patented. I don't love that argument, but the possibility of knowing infringement complects the case somewhat.
However, I'm somewhat comforted by the expressed limitation in the ruling, that it pertains to this case only.
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.
However, I'm somewhat comforted by the expressed limitation in the ruling, that it pertains to this case only.
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.
> 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 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?
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?
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> 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.
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?
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.
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.
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.
FYI, this opinion explicitly does not cover a situation where a farmer plants a patented seed accidentally.
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.
yes, but monsanto is not claiming a patent on all soybeans.
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.
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.
And the farmer in this case didn't buy the offending seed from Monsanto, yet here we are...
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.
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.)
(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.
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.
EDIT: spelling
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.
EDIT: spelling
It seems a bit silly to infer corruption from the court not ruling on something that was never in dispute.
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.
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.
Yeah. I wonder if this was not the right test case.
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.
edit: read the NYT article which has further comments by the court, http://www.nytimes.com/2013/05/14/business/monsanto-victorio...
edit: read the NYT article which has further comments by the court, http://www.nytimes.com/2013/05/14/business/monsanto-victorio...
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.
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.
https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmei... I believe this is the closest case, yet, to that scenario.
plant patents are a specific type of patent. I am not a fan of Monsanto, Kagan (Kagan implied that the monsanto opinion would not necessarily apply to other self-replicating entities - also correct), or patents in general, but I think this judgement is correct. Congress has broad authority to define and determine what constitutes intellectual property, and it's fairly clear exactly what is protected, and why, in plant patents.
Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates.
The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.
Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates.
The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.
I don't see this case as determining the patent eligibility of biological material generally, nor about answering what happens if patented seed contaminates your field. I feel those issues are driving interest in Monsanto cases, but this isn't one of them.
I'll take a stab at explaining why this was a really boring case.
Roughly, the law allows you to use a patented object as you see fit, that's the "exhaustion doctrine." Patents aren't a full license that controls every aspect of the owners use of an object, it just prevents copying. Well, ok, what if typical use of the object makes a new copy?
Here, the patented object is a seed, where its main inherent function is self-duplication. You could use it for other things, as filler for bean bag chairs, as fuel for a massive fire, as feed, whatever. But the main thing seeds do is reproduce themselves.
So does the exhaustion doctrine apply?
No. The patent system is mainly a DO NOT COPY law. It's not mainly a USE THINGS YOU OWN law. The exhaustion doctrine is an artifact, a patch, to keep DO NOT COPY from getting out of hand.
It should surprise no one what when asked if the DO NOT COPY law means DO NOT COPY, that SCOTUS should reply, "Why, yes, it means exactly that."
I'm not a huge fan of the way Monsanto has aggressively leveraged bio patents against some farmers. Hell, I'm skeptical of the economic utility of state granted monopolies in general. But this case was never realistically addressing any of that. We had a knowing infringer, so none of the most abusive practices. The broader bio patent theories are very well established. (This isn't SCOTUS's first time at the bio patent rodeo.)
The case was a "could you repeat your definition?" "Sure, here's that same definition."
I'll take a stab at explaining why this was a really boring case.
Roughly, the law allows you to use a patented object as you see fit, that's the "exhaustion doctrine." Patents aren't a full license that controls every aspect of the owners use of an object, it just prevents copying. Well, ok, what if typical use of the object makes a new copy?
Here, the patented object is a seed, where its main inherent function is self-duplication. You could use it for other things, as filler for bean bag chairs, as fuel for a massive fire, as feed, whatever. But the main thing seeds do is reproduce themselves.
So does the exhaustion doctrine apply?
No. The patent system is mainly a DO NOT COPY law. It's not mainly a USE THINGS YOU OWN law. The exhaustion doctrine is an artifact, a patch, to keep DO NOT COPY from getting out of hand.
It should surprise no one what when asked if the DO NOT COPY law means DO NOT COPY, that SCOTUS should reply, "Why, yes, it means exactly that."
I'm not a huge fan of the way Monsanto has aggressively leveraged bio patents against some farmers. Hell, I'm skeptical of the economic utility of state granted monopolies in general. But this case was never realistically addressing any of that. We had a knowing infringer, so none of the most abusive practices. The broader bio patent theories are very well established. (This isn't SCOTUS's first time at the bio patent rodeo.)
The case was a "could you repeat your definition?" "Sure, here's that same definition."
Interesting to see the diverging paths being taken by America and a ton of developed countries, where Monsanto has been removed and banned (Austria, Bulgaria, Germany, Greece, Hungary, Ireland, Japan, Luxembourg, Madeira, New Zealand, Peru, South Australia, Russia, France, and Switzerland)
This is disappointing but not at all unexpected.
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
- Farmers still have to buy seeds every year - Farmers do not have to worry about cross pollination - Farmers do not have to fear second-hand seeds (this case) - Seed washers do not have to fear lawsuit + no volume, only no volume - Monsanto can stop suing everyone
What am I missing, other than Monsanto leaving the door open so they can strengthen their position through the courts like this?
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
- Farmers still have to buy seeds every year - Farmers do not have to worry about cross pollination - Farmers do not have to fear second-hand seeds (this case) - Seed washers do not have to fear lawsuit + no volume, only no volume - Monsanto can stop suing everyone
What am I missing, other than Monsanto leaving the door open so they can strengthen their position through the courts like this?
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
It would be disastrous if the "terminator" gene ended up cross pollinating neighboring crops resulting in all subsequent cultivars being contaminated with "terminator" genes...
It would be disastrous if the "terminator" gene ended up cross pollinating neighboring crops resulting in all subsequent cultivars being contaminated with "terminator" genes...
You might not be able to directly plant a second gen Monsanto seed if they used the terminator, but what happens with a hybrid?
Seems like something that would get out of hand.
Seems like something that would get out of hand.
The most interesting part about this was that it was 9-0.
If I'm reading it (the article, not the decision; IANAL, etc...) correctly, it was decided pretty much as a straightforward contract issue. He had a signed contract with Monsanto not to plant that breed via anything but purchased-from-Monsanto seeds. He tried to get around it by buying and planting bulk soybeans bought from the market. The court said no, that's not OK.
Nowhere did there seem to be a serious issue about the reach of patent law or the breadth of Monsanto's IP.
Nowhere did there seem to be a serious issue about the reach of patent law or the breadth of Monsanto's IP.
I don't believe you're reading it correctly. (IAAL). Yes, he had a license that allowed him to grow the crop, but that does not change the fact that Monsanto was suing him for patent infringement, not breach of contract.
Typically when you exceed the scope of your license, the appropriate cause of action if for infringement, not breach of contract. The idea is that all the license does is to grant permission to do x where it would otherwise be prohibited by law. X here is to grow a crop but not replant the seeds harvested from it. There is no need to go farther in the contract and prohibit replanting because the premise of the license agreement is that everything not covered by the agreement is already illegal ex ante.
Typically when you exceed the scope of your license, the appropriate cause of action if for infringement, not breach of contract. The idea is that all the license does is to grant permission to do x where it would otherwise be prohibited by law. X here is to grow a crop but not replant the seeds harvested from it. There is no need to go farther in the contract and prohibit replanting because the premise of the license agreement is that everything not covered by the agreement is already illegal ex ante.
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The Supreme Court only takes on a fraction of the cases that appeal to them. Given the 9-0 ruling and seemingly clearcut contract situation, does anyone know why they chose to take this case in the first place?
Because it answers the question whether replanting the seeds of a patented GMO plant counts as a permissible use under the patent exhaustion doctrine or whether it's patent infringement. Absent this ruling, a court might have concluded that harvesting and replanting was such a typical use of a plant that it could not constitute patent infringement.
(Also, what's the clear-cut contract situation? I don't think there is one in this case.)
(Also, what's the clear-cut contract situation? I don't think there is one in this case.)
This decision rests on the common, but arbitrary view that different generations of organisms are different things, when they can instead be viewed as all the same entity. Of course, that view is not very popular, and would completely destroy any hope of collecting meaningful royalties from non-sterile genetically modified organisms.
This unanimous decision by SCOTUS shows a sickening lack of appreciation for the complexity of the problem. We need more creative and forward-thinking people interpreting our laws.
This unanimous decision by SCOTUS shows a sickening lack of appreciation for the complexity of the problem. We need more creative and forward-thinking people interpreting our laws.
I wonder if this means I can buy a product from someone that, unbeknownst to me, violates a patent, and the patent holder can come after me.
I'm not a fan of patenting genes in seeds, but in this case he knew that some of the seeds he was buying contained Monsanto seeds, but figured since he was a small fish in a big pond that Monsanto wouldn't mind. In Monsanto's view, they need to protect their investments in R&D.
From the article:
Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. ... He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. 'I couldn't imagine that they'd give a rat's behind,' " he said.
From the article:
Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. ... He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. 'I couldn't imagine that they'd give a rat's behind,' " he said.
Many folks are stating this was a clear-cut case of violation of contract law: the guy at one time signed something with Monsanto stating his exclusive source of RR soybeans would be Monsanto.
However, if I buy 160 acres of land, and plant that land in soybeans from a non-Monsanto granary with some RR seed in it, then how could I be culpable if I had no dealings at all with Monsanto? I am guessing a case wouldn't be a straight 9-0 SCOTUS ruling.
However, if I buy 160 acres of land, and plant that land in soybeans from a non-Monsanto granary with some RR seed in it, then how could I be culpable if I had no dealings at all with Monsanto? I am guessing a case wouldn't be a straight 9-0 SCOTUS ruling.
"Many folks are stating this was a clear-cut case of violation of contract law"
Those people are wrong. Monsanto did, indeed, sue him for patent infringement, not breach of contract. The contract mentioned in the case is just his license to grow the plants from Monsanto. He was forbidden from replanting those soybeans (or other patented soybeans) by patent law because such actions exceeded the scope of his license. There is nothing at all in the opinion that refers to a contract where he agreed only to buy RR soybeans from Monsanto.
Those people are wrong. Monsanto did, indeed, sue him for patent infringement, not breach of contract. The contract mentioned in the case is just his license to grow the plants from Monsanto. He was forbidden from replanting those soybeans (or other patented soybeans) by patent law because such actions exceeded the scope of his license. There is nothing at all in the opinion that refers to a contract where he agreed only to buy RR soybeans from Monsanto.
Point taken. But it still seems he had a direct relationship (the license).
My point still stands. If I, having no relation whatsoever with Monsanto, buy random soybeans as feed, then plant them, then spray them with Roundup to weed out the non-Monsanto seeds, then save the seeds selected for resistance, I believe that the Court would not have made such an "easy" 9-0 decision, assuming they tried to sue me at all (rather than the granary or someone else).
The intuitive purpose of the patent protection for RR seeds seems to be preventing a different genetic research firm from creating a similar seed and also selling "Roundup-Ready Seeds" -- not preventing some random Joe who selects some unidentified seed stock for resistance to Roundup to better his yields. The fact that we should all know there may be Monsanto seeds in the mix is (or should be) irrelevant.
So it seems to me that we're still waiting for a "real" case that deals 100% with the genetics and patents.
My point still stands. If I, having no relation whatsoever with Monsanto, buy random soybeans as feed, then plant them, then spray them with Roundup to weed out the non-Monsanto seeds, then save the seeds selected for resistance, I believe that the Court would not have made such an "easy" 9-0 decision, assuming they tried to sue me at all (rather than the granary or someone else).
The intuitive purpose of the patent protection for RR seeds seems to be preventing a different genetic research firm from creating a similar seed and also selling "Roundup-Ready Seeds" -- not preventing some random Joe who selects some unidentified seed stock for resistance to Roundup to better his yields. The fact that we should all know there may be Monsanto seeds in the mix is (or should be) irrelevant.
So it seems to me that we're still waiting for a "real" case that deals 100% with the genetics and patents.
This isn't that case because that case was decided 12 years ago: J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124 (2001) ("we hold that newly developed plant
breeds fall within the terms of § 101 [which specifies what sorts of inventions are patentable]"). Or, really, 33 years ago: Diamond v. Chakrabarty, 447 U. S. 303 (1980) ("A live, human-made micro-organism is patentable subject matter under § 101. Respondent's micro-organism constitutes a 'manufacture' or 'composition of matter' within that statute.")
Is there any information about the person that sold the seeds in question?
It seems that Bowman bought seeds from Monsanto, planted them, sold the harvest, bought other seeds at a grain elevator from someone else, and got in trouble when he planted them. Why is Bowman in trouble and not the grain elevator guy that sold the seeds? Is it that Bowman signed an agreement with Monsanto when he bought seeds from them?
It seems that Bowman bought seeds from Monsanto, planted them, sold the harvest, bought other seeds at a grain elevator from someone else, and got in trouble when he planted them. Why is Bowman in trouble and not the grain elevator guy that sold the seeds? Is it that Bowman signed an agreement with Monsanto when he bought seeds from them?
Yes. I've heard (here, I think) of patent trolls that prefer to go after customers rather than producers of whatever is supposedly infringing, because it's easier to convince the smaller customers to settle out of court rather than fighting and getting the patents declared invalid.
I don't think your question can be answered from this case.
The farmer here had signed an agreement with Monsanto, and knew the second hand seeds he was buying were covered by Monsanto's patent.
If the farmer had never signed an agreement with Monsanto the case may have turned out differently.
The farmer here had signed an agreement with Monsanto, and knew the second hand seeds he was buying were covered by Monsanto's patent.
If the farmer had never signed an agreement with Monsanto the case may have turned out differently.
Not come after you but maybe make you stop using it.
There are no free passes like that in the US patent system as far as I'm aware. You don't have to knowingly infringe a patent to be taken to court by a patent holder and potentially held liable for patent infringement.
Maybe, but they sue a few here and there to send a message, not everyone doing it.
True, that's usually the case. However, it is still entirely up to the whim of the entity asserting a patent claim (rightly or wrongly) as to whether or not you end up with a very large legal bill. That's a huge amount of liability and personally it terrifies me.
OK, that's true but in this case, he almost certainly knew what he bought, as stated on the SCOTUS ruling.
Absolutely disgusting!!!
The very notion of "copyright" being applied to life forms is the antithesis of freedom.
A clear case of government, of the corporation, by the corporation, for the corporation. The People be damned!
Soybeans are living beings, and have been around longer than Monsanto, and the US government, combined. As such, humanity in general should claim infringement of our unalienable right to cultivate whichever seeds we find upon the face of the Earth, without fear of prosecution by multi-national corporate interests.
A clear case of government, of the corporation, by the corporation, for the corporation. The People be damned!
Soybeans are living beings, and have been around longer than Monsanto, and the US government, combined. As such, humanity in general should claim infringement of our unalienable right to cultivate whichever seeds we find upon the face of the Earth, without fear of prosecution by multi-national corporate interests.
I haven't thought about it enough to decide whether I'm for or against patenting genetic modifications.
That said, the farmer in this case knew what he was getting into when he signed up with Monsanto. He obviously supports the concept because he was buying patented, modified seeds from Monsanto. He signed the contract with them, then he broke his end of the deal. It seems like an open and shut case.
That said, the farmer in this case knew what he was getting into when he signed up with Monsanto. He obviously supports the concept because he was buying patented, modified seeds from Monsanto. He signed the contract with them, then he broke his end of the deal. It seems like an open and shut case.
He didn't purchase the offending seeds from Monsanto, so he should not have to pay Monsanto, the people who sold him the contaminated seeds are at fault.
But he signed a contract saying he would only buy the modified seeds from Monsanto and their resellers. He explicitly agreed not to do what he did.
If it were a third party farmer who hadn't signed a contract with Monsanto then this case would be completely outrageous. But that's not what happened.
I don't think the case is about the seeds as much as everybody has made it out to be. He previously signed a contract limiting the ways he could acquire modified seeds, and he broke the contract.
If it were a third party farmer who hadn't signed a contract with Monsanto then this case would be completely outrageous. But that's not what happened.
I don't think the case is about the seeds as much as everybody has made it out to be. He previously signed a contract limiting the ways he could acquire modified seeds, and he broke the contract.
For those that want to read the ruling: http://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf
or hear the oral arguments: http://www.supremecourt.gov/oral_arguments/argument_audio_de...
or hear the oral arguments: http://www.supremecourt.gov/oral_arguments/argument_audio_de...
With the outrage over Monsanto's patenting, why have we not had a kickstarter to develop an "opensource" alternative to roundup resistant seeds? (ala http://www.kickstarter.com/projects/antonyevans/glowing-plan... )
I'm always curious about one detail in these cases. There is only a real benefit if they're using Roundup, right? Are they also under agreement when they purchase the pesticides?
This is really scary...
...only if you are a farmer knowingly planting unlicensed monsanto seed in your field with the hopes that the patent wouldn't hold up in court.
And after you signed a contract agreeing not to do that....
9-0 decisions are easy when the facts of a case are so clear cut.
9-0 decisions are easy when the facts of a case are so clear cut.
What's interesting in this case is that, in my opinion, the Court ruled correctly; the problem isn't the courts ruling. It's the fact that the law is the way it is: perhaps organism patents should be legal, but the Monsanto situation seems to be a gross exploitation of the current system.
Under the current law, yes, the farmer was in the wrong. It just seems like the current law might need to be changed.
Under the current law, yes, the farmer was in the wrong. It just seems like the current law might need to be changed.
Which is inevitable if you have a non-Monsanto farm near a Monsanto farm.
It's scary.
It's scary.
How is the farmer supposed to source non-Monsanto seeds?
How would he verify that seeds were from Monsanto or not?
How would he verify that seeds were from Monsanto or not?
IP is one of the last economic sectors where the US has a commanding lead. Of course the US government is going to strongly protect IP, and seek more trade agreements around the world to respects its IP, because otherwise its trading deficit would unravel faster and wages in the US would be rapidly depressed towards the average in the world: $75 a day (for official wage earners ... for many people in the world it's more like $2 a day).
Source: http://www.bbc.co.uk/news/magazine-17512040
In turn this would probably lower the demand for US dollars, as the US government would be getting less revenue in $ from the working class whereas the investor class would probably diversify more around the world.
The funny thing is that, even as the US pushes for more countries to work with it to enforce IP (such as the crackdown on MegaUpload), it doesn't enforce many trademarks from other countries: http://www.forbes.com/sites/larryolmsted/2012/04/12/foods-bi...
Source: http://www.bbc.co.uk/news/magazine-17512040
In turn this would probably lower the demand for US dollars, as the US government would be getting less revenue in $ from the working class whereas the investor class would probably diversify more around the world.
The funny thing is that, even as the US pushes for more countries to work with it to enforce IP (such as the crackdown on MegaUpload), it doesn't enforce many trademarks from other countries: http://www.forbes.com/sites/larryolmsted/2012/04/12/foods-bi...
I don't think you understand how IP works. You think that in a national security sense, our IP laws keep our economy ahead of other countries? What, they're bound by those laws?
In many (though far from all) cases, the answer is actually "yes, they are." By treaty.
They are if the cited trade agreements go through. That's the whole point of these agreements.
Indeed, it may be you who doesn't understand how IP works. When rights holders try to get IP rules tied up in international trade agreements it's because they want to make it that much harder for signatory nations to modify IP law.
This is an important line of defense in cases where the rules are protecting companies that are widely seen as abusive (e.g. Monsanto), since nations that turn against them not only have to pass new legislation, they also have to disengage from international treaties. That extra layer of complication can add years of profitability to highly unpopular schemes.
Indeed, it may be you who doesn't understand how IP works. When rights holders try to get IP rules tied up in international trade agreements it's because they want to make it that much harder for signatory nations to modify IP law.
This is an important line of defense in cases where the rules are protecting companies that are widely seen as abusive (e.g. Monsanto), since nations that turn against them not only have to pass new legislation, they also have to disengage from international treaties. That extra layer of complication can add years of profitability to highly unpopular schemes.
I shouldn't have said "You don't know how IP works", because that's rude and it's beside the point. I'm more talking about international law in general. The law that states that the US cannot invade Iraq and that Syria cannot possess chemical weapons.
It's nighttime in China right now, but yesterday afternoon and tomorrow morning there are people working on duplicating every bit of protected American IP that they think is worth it.
Betting future economic security on other countries following the letter of the law against their own interest.. I just wouldn't call it wise. I mean, the UN's been telling the Israelis and the rest of the middle east that shooting at each other is against the law for decades now.
It's nighttime in China right now, but yesterday afternoon and tomorrow morning there are people working on duplicating every bit of protected American IP that they think is worth it.
Betting future economic security on other countries following the letter of the law against their own interest.. I just wouldn't call it wise. I mean, the UN's been telling the Israelis and the rest of the middle east that shooting at each other is against the law for decades now.
Oh I couldn't agree with you more on this point. India's treatment of pharmaceutical patents is a sterling example of a one-sided deal being given all the respect it deserves.
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The farmer here knew of Monsanto's license by which you could buy their genetically-altered (patented) seeds for the purpose of planting one crop only and selling that crop, with the need each year to buy more of the patented seeds from Monsanto directly or from one of its authorized resellers and with a specific prohibition on any form of replanting. Each year, he routinely bought these seeds and planted them in accordance with the license restrictions for his primary crop. For his secondary crop each year for eight years running, though, he bought seeds generically on resale from a grain elevator, planted them in a such a way as to isolate which parts of the resulting crop were from the Monsanto seeds, and, through a continual culling process, regularly wound up planting these Monsanto seeds for an 8-year period so as to get the benefits of the patented seeds without having to buy them from Monsanto or a Monsanto dealer. When he got sued over this, he argued that the "bean did it" by claiming that he did not himself "make" or "create" an infringing product so as to infringe Monsanto's patent but rather forces of nature over which he had no control created the new product, thereby absolving him for any responsibility for infringement.
People often mock the law for its occasional absurdities and for its bone-crushing processes, and rightly so. But most U.S. law at its core is grounded in sound principles that make a lot of sense, and the case here represents one such instance.
Granting the premise of patent laws that an inventor is to have monopoly protection for a prescribed period in order to profit from his invention, it makes perfect sense that the patent exhaustion doctrine should not be interpreted such that, after but a single sale of the product that benefits the patent holder, others can simply make copies of the product for sale or use directly and without compensating the patent holder in any way. Now, some may support such an outcome in the name of sticking a thumb in the eye of patent holders but, given that U.S. courts do not have a mission to subvert the patent laws and instead seek to uphold them as the law of the land, those courts cannot really abide such a result. Instead, they will say that the farmer's argument here that the "bean did it" is pure sophistry and a way of subverting the plain purpose of the law. That is exactly what the U.S. Supreme Court did here. And that is why it was unanimous. By legal standards, it really was not a close call.
In the words of the Court: "In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct."
All that said, the court was very careful to note that its ruling does not in any way apply to all forms of self-replicating product: "We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose." Thus, the ruling was not a knee-jerk upholding of maximum protection for the patent laws. The court seems more than ready to keep an open mind when it comes to changing technology. It simply was not ready to give sanction to a clever interpretation of law that would have undercut the very fundamentals of why the law existed in the first place.