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Comment by tptacek | Hacker News Reader

No, he got sued by the patent holding company for using those seeds and then spraying them with Roundup, which would have killed off his crop had they not been the patented seeds. This is true of all the cases of people being sued for cultivating "Roundup-Ready" crops: the story they want to tell is that they were sued for cultivating seeds that accidentally wound up on their fields, but the facts established at trial were that, however the seeds ended up there, the farmers deliberately exploited the patented system.

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God forbid the farmers benefit for free in some way from the unpredictable and uncontrollable pollination of a plant genetically engineered to be a highly successful cultivar.

I'm not attacking you here, but the logic decided by the courts may be lawful but it is not moral (in my opinion). It's as if a noisy neighbour hosts a late night party and you happen to enjoy the music. The neighbour notices and decides to charge you for the streaming fee.

That patents genes spread lightly onto his field didn't give him a "get out of patent free card" to then concentrate those genes by spraying the field with herbicide. The courts properly understood that intent and actions matter here. The farmer was in the wrong and justice was done.

It just demonstrates how patents are a form of rent seeking. You own the product of your labor but you should not be able to assume you own the accidental products that are related to your labor (ex. buying tools from a tool smith which then you use to make your own tool smithy).

There is no way that analogy holds in this case. The farmer didn't cultivate their own RoundUp to spray, among other problems with it.

What if the farmer was trying to clear the land with roundup and the accidental gmo modified crops prevented him from doing so. Could he sue for damages?

Perhaps! Though in this case it seems he engaged in the behavior over an extended period of time and did not consider the patented crops a problem.

No, if he didn't save seeds from crop plants on that land. That saving of seeds after spraying was the incriminating act.

How does the doctrine of first sale not apply here?

I could make up some convoluted argument but… the neighbor conducted the first sale so this should have extinguished any further patent claim. Of course, IANAL.

He is not reselling individual seeds. He is manufacturing new seeds. He is not allowed to do that, and particularly not allowed to do that with intent.

From wikipedia:

>A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention.

In this, letting the plant reproduce arguably falls under "making" (ie. manufacture) of the patented thing (the genetically modified plant).

In no way was that depiction accurate. Indeed, if an innocent farmer were, by no fault of his own, found liable for contamination, he could properly sue the others for contaminating his land. For this reason, Monsanto always said it would never sue just for accidental contamination, and never did.

> and justice was done

That's one of the stupidest things I've read on this website.

It's perfectly clear it was a correct legal decision. The farmer was deliberately and intentionally trying to evade the patent, as we've explained multiple times in these comments.

Perhaps you could explain why the decision was incorrect? Or why justice demanded differently?

But look at the flip side where the court ruled the farmer cannot be liable for a plant naturally spreading into his field (and the farmer upon learning this using the specific herbicide meant for that specific plant strain). You now have precedent that if the plant "accidentally" (wink wink) spreads to your field you are not liable for the cost of the plant

Your logic would apply to all seeds, right? If you have any plant on your property and you can't provide a receipt for its seed or conclusively prove that a bird dropped the seed, you should be convicted of theft.

No, you can't.

To be totally honest, I am fine with the situation you just described. The only argument in favour of IP is "but what about the economics of the seeds?" i.e. "but how will corporations get rich without it?" and my answer is: they will have to find some other way to contribute to humanity than placing a stranglehold on the freedoms of the poor.

Edit for those whose rebuttal is all too predictable: I know this affects the incentive structure for developing new science. But I don't think it's at all clear that the current incentives are actually a good thing in the long run. Alternatives for income could be one of the following: providing a service, producing and selling the seeds, working with local farmers to help them maximise yield from the seeds you developed, securing donations from those who stand to benefit from your research... etc.

The ability to patent life itself is a dangerous one.

Imagine where these precedents lead when inevitably we start genetically engineering people. If you yourself carry genes engineered by a biotech firm (cancer resistance or laser eye beams, you can pick according to whim), do you have to pay them royalties when you have children?

Even without patents, there's a whole system of plant breeder's rights. The idea is that even without patents, breeding plants for a particular set of characteristics is a ton of work and the rights system is a patent-like way to commercialize.

If you have a different idea for solving this particular financial problem, I expect quite a lot of people would love to hear about it.

My point is that patents are abused enough already.

We should not allow patenting of genomes/genes. Full stop. We should rely on those other systems of breeder's rights.

You objection to "patenting life" seems utterly spurious and would effectively end GMO seeds (as the effort expended creating them could not be recouped.) But perhaps that's your ulterior motive. I see no legitimate motivation for your position.

$169 for a HiFi Gibson Assembly kit. Up to 8000bp for about $2200-3500. It's not as forbidding as you might think.

The insistence on IP law being the only probable, legitimate incentive is what's spurious.

That's like pointing to the cost of laboratory glassware to claim drug discovery isn't expensive.

Discovery isn't. Look at all the RCs and other designer drugs around, or Shulgin. I could pull a shit out of my ass and probably find a microbe with something noteworthy in it.

A lot of this shit just happens by accident. LSD, Viagra, Penicillin off the top of my head. All had huge impacts too.

It's everything post, and a bunch of overpaid jackoffs and hullabaloo. You're not going to take an RC with an open license to market because there's a billion dollars in intermediary steps between finding it and proving it's safe and effective.

Oh my goodness. You are completely clueless about the economics of drug discovery. It is vastly more difficult and expensive than you think.

Am I though, or am I just looking arbitrary restrictions put in place by various governments either directly or indirectly curbing deliverable drugs? Oh and pharma's shitty business practices.

I don't think it's fair to call it economics when all the costs are derived from legal fictions and stakeholder disinterest.

Yes, drug discovery can become much easier if you don't have to show the drugs work and are safe. Any old chemical can be called a drug in that case; you don't even have to laboriously search through the exponentially vast space of possible chemicals for the winners.

Snake oil, anyone?

Yeah I guess we ahould go from one extreme to the other and totally forget all the biochemistry and public knowledge of drugs we've accumulated in the last 100 years.

As to working the baseline efficacy benchmark is 30%. Not really a stunning number considering it has already been selected as a remedy for something specific at that point. Curatives aren't marketable when profit motive of stakeholders is involved.

Big pharma peddles snake oil, too, by the way. Serotonin theory is becoming increasingly unpopular and SSRIs are looking increasingly dangerous as a clinical proposition, and they're frequently misused in clinical settings. Despite all of that they're taken by 13% of Americans, and the trend points towards an increasing number. Lest we forget: the pretension of safety Pharma acts under has been dangerous in many instances.

There's plenty of ethnogenic compounds that smack against your theory, too, by the way. In any case, to my knowledge, most of these "drugs" are derivative from known-active compounds, altered then patented (sometimes finding better therapeutic doses, lower toxicity, better dose response). At this point the laborious search is relatively smaller. Not to mention it's currently being offset to molecular dynamics which allows us to engineer hypothetical molecules against simulated proteins including those that are dysfunctional as well as model pathways for synthesis.

AZ Molecular Dynamics: https://m.youtube.com/watch?v=yNGS_mv1-94

Let it be abused and let nature take its course. Investors can get stiffed.

the logic decided by the courts may be lawful but it is not moral (in my opinion).

Doubly so when you consider that the patent holding company (like Monsanto) has a lot of ability to affect legislation and the (presumably) independent farmer has next to none. The issues here are systemic and not limited to big ag.

This argument is completely orthogonal to the narrative originally presented, which is that farmers who weren't trying to benefit from the patents at all were tangled up in Monsanto lawsuits. That narrative is false, and that's all I'm here to correct. There's a Motte and Bailey thing that happens with these discussions, the bailey being "Monsanto will sue you even if their seeds just happen to blow onto your property" and the motte being "intellectual property isn't real".

an argument designed to appeal to a court is not necessarily moral or true, and this is generally accepted as normal practice

It just has nothing to do with what we're talking about. The notion that Monsanto is suing farmers for seeds just blowing onto their fields false, and thus can't have anything to do with whether seeds should be patentable.

slow down and understand my words. it's perfectly fine and moral to take advantage of the fact that someone else's seeds have blown onto your land, but that's not an argument you can sell to a court. so publicly making a separate legally stronger argument is normal and reasonable behaviour that doesn't lessen them whatsoever

That seems utterly irrelevant. Trying to benefit is irrelevant. Trying to steal is what is relevant.

Consider the case where the gene edited crops actually implemented a dependency on roundup, and the neighboring farms were forced to use round up rather than did so because it was simply more useful.

No such dependency exists. The only rational reason to spray a crop with RoundUp is that you know you've sowed RoundUp Ready seeds; in any other circumstance you'd simply be killing your crop off. If you contrive a counterfactual where that's not the case, then obviously different fact patterns matter. It's like saying "well, sure, he shot the guy, but consider an alternate universe where shooting someone with a gun doesn't hurt them but instead immediately brings them to their recommended daily allowance of thiamine".

The claim that Monsanto sues people for accidentally or unwillingly having their patented seeds sown is simply false, full stop.

Farmer here, the above is absolutely correct. The notion that a farmer would "take a chance" on spraying an non-GMO planted crop with Roundup/Liberty is a pure fiction.

That is still irrelevant. You should not be able to sue someone for having your stuff. You should be able to sue them for stealing it. In this case it was not stolen. It was planted and spread naturally. And then the farmers chose to keep using the things that things that had basically fallen into their laps.

I really don't care if you think all patents are bogus. That is the most boring conceivable debate to have. There is nothing special about seeds to change the argument; that's all I'm here to say.

What's special about seeds is they reproduce with a bit of water, soil, and sunlight. My laptop does not and in fact will be very sad if I water it. Thus no matter how many patents Intel has on the things inside my laptop, there's a limit on how much I can ultimately do with the physical device.

Nothing you can do with water, soil, and sunlight is going to produce RoundUp --- or a RoundUp-Ready seed.

It's perfectly reasonable to oppose all patents. Just don't pretend the wind, sun, and dirt somehow invalidate seed patents. There's no distinction to draw.

People have been sued for growing patented potatoes, unrelated to round up . . . Ok?

U take tuber u put it in ground it grows more tubers u try to sell BOOM illegal son .

Uh huh.

[Square bracket number citation link thingy https://www.reuters.com/article/us-india-pepsi-farmers/pepsi...]

He doesn’t respond so I win by default . Righteous troll:1 Capitalist corporation defender: 0

So, your objection to patents is that they are enforced when violated?

No. Objection when they are overly broad generic obvious and\or trivial

Am surprised even need to explain on this forum of coders. Many examples of bad boy software patents.

And you evidence that the patents for these potatoes was "overly broad generic obvious and/or trivial" is...?

Our illiterate ancestors have been doing it for thousands of years.

That's a whopper of a non sequitur. I was asking about the specific patent on these potatoes. Our ancestors have been growing this specific patented version of potatoes for thousands of years? Really?

No, they have been cross pollinating parents with desirable traits to produce an offspring with more desirable traits. The same thing Pepsi did to make FC5 potato.

Here is the patent for the FC5 potato.

https://patents.google.com/patent/US6940004B2/en

Read it carefully because while the patent claims that it also would apply if transgenic modifications are added, the variety was developed through just classic breeding techniques, which are described in the patent in case you aren’t familiar.

And it's fine to patent specific (and novel) varieties of potato. The patent just applies to that specific variety, not to the general concept of improving potatoes. It's irrelevant that other specific varieties may have been bred for millenia.

So PepsiCo can utilize others prior breeding work, but prevents others from using their variety’s to breed with ?

If everyone who bred a potato patented it, we all suffer as breeders would be limited in what they can work with.

http://www.jwz.org

Wouldn't this actually be an argument in favor of seed patents? I've been more or less a complete IP abolitionist for so long now that thinking in IP maxi terms is basically a foreign language to me now, but wouldn't they make the argument that it's necessary to allow protections where the good is A. hard to develop initially and B. easy to reproduce?

Exactly. GMO seeds are a best case for patent protection, in the same league as new drugs.

It's a honest argument.

It seems perfectly reasonable to most people that even if you own a patent on a seed that if I obtain it and can grow it I should be able to, in the way that your rights are generally exhausted if you sell a patented part to retail.

Monsanto would lose nothing in case where it was accidental and where the farmer intended it Monsanto would benefit from selling roundup.

Because of this, no plausible damages to Monsanto and that doing nothing is a perfect solution, the lawsuits seem egregious.

So what? I should be able to do whatever the fuck I want on my field as long as I don't use pesticides or processing that has been banned by law, without anyone being allowed to sue me for that.

He did something that only made sense if it were deliberate and intentional violation of the patent. Intent matters.

As a farmer with experience growing roundup-ready crops: In order to obtain roundup-ready seeds you have to sign a contract with the vender. In said agreement, you agree to not do such things.

If you want to do whatever you want with your field, don't enter into contractual agreements where you agree to follow certain rules.

> As a farmer with experience growing roundup-ready crops: In order to obtain roundup-ready seeds you have to sign a contract with the vender. In said agreement, you agree to not do such things.

The farmer had not entered into any contract with anyone, that is the point. It's not his fault if pollen from his neighbor's field entered his field, even if they contained "patented" technology.

If you are referring to a case where litigation was executed under the terms of patent contract, the farmer – being a member of the public who grants such patents – has still entered into a contract by virtue of choosing to be a member of the public who has agreed that patent contracts are desirable to issue. The public had no obligation to issue the patent, but chose to. The farmer need not be a member of that public, but chose to be.

How would one choose not to be a member of that public?

The farmer is under no moral obligation to care that the uniformed public wants. It only matters to pretend to live in a democracy.

Then, without a license, he had no right to exploit the patented technology. The farmer acted in a way that showed a knowing and deliberate exploitation of the patented technology. There seems to be a disconnect here, but I'm not seeing it. Can you help me with what I've missed?

You need a license to produce and sell patented technology.

You don’t need a license to use patented technology which you either bought from a third party, was given or has blown onto your land by the wind.

This thread is going in circles. As mentioned a few comments ago, it's clearly not the case that the technology "blown onto your land by the wind". The farmer was intentionally engaging in artificial selection to get plants with roundup ready traits. I can be sympathetic to the claim that a patented program magically appeared on your computer because of random bit-flips, but I can't be sympathetic if you deliberately set up a system to generate bit-flips on your computer in a specific way so as to produce the desired program.

And note that this farmer would not have successfully obtained glyphosate resistant plants just by spraying his field, in the absence of the contamination. If it were that easy, GMOs wouldn't have been necessary in the first place.

In the case being discussed, the neighboring farmer had not signed any agreement with the vendor.

Yup. That’s what the other comment said…

So why did you imply he had signed a contract?

Then he acted in a way that made it clear he was using the patented materials without a license. Specifically, spraying his fields with Round-up that would have killed everything that was not patented.

You can shrug and say "Oh, it was clearly an accident, Monsanto is evil". And Monsanto is certainly evil. It's just reasonably clear why the judge would view this behavior as deliberate and knowing infringement of a patent.

The original statement was as followed:

"I should be able to do whatever the fuck I want on my field as long as I don't use pesticides or processing that has been banned by law"

And then someone responded to this by saying that someone signed a contract.

And then you responded by going off about something that is refuted by the original statement.

So, you need to agree that the original response about a contract was wrong, and also that your new statement is irrelevant.

Yes, the original statement was overly narrow in its view of patents and contracts. Not only should you not enter into contracts that restrict how you can treat your fields, you should also not deliberately act in a way designed to infringe the rights of others if you want to be free to do as you please within the law without incurring liability.

For example, you should not deliberately cultivate a patented plant for which you lack a license from your neighbor's plot of land and then treat it in a way that only makes sense if you're doing that. That will incur liability when a judge notices you are trying to dodge licensing. To put it another way, using processing banned under law.

We shouldn't enforce absurd patents like that in the first place. What's the worst that happens? Some old people starve because their retirement investments tank?

The farmer did enter into an agreement when he purchased Roundup.

Yeah, the courts aren't always friendly to clever "hacks" on the legal system. Intent matters, and facts can show intent.

> the story they want to tell is that they were sued for cultivating seeds that accidentally wound up on their fields, but the facts established at trial were that, however the seeds ended up there, the farmers deliberately exploited the patented system.

I don't understand the distinction you're making. "cultivating seeds" and "deliberately exploiting the patented system" mean the same thing in this case. Spraying them with Roundup is how you cultivate them. Do you mean that it's illegal to buy Roundup if you haven't already bought the seeds that go with it, or something?

Edit: I think maybe you're saying that Monsanto has patented the very act of applying Roundup to a Roundup-Ready crop. So not only are the seeds and pesticides patented, but the method of applying one to the other is patented. If that's the case, that's a dumb patent that shouldn't be allowed to exist.

My understanding of OP is that the farmer used Roundup on his crops knowing full well that his "natural" and "non patented" crops will be killed by Roundup, which the patented plants are naturally immune to by design.

It's not illegal to purchase and bulk-spray Round-up to an incompatible crop. It's just stupid. It is expensive and it will kill the plants.

The lawsuit alleged that the farmer's behavior was so stupid that he must have known his crop was Roundup-Ready.

That's not consistent with accidental pollination. It suggests that he deliberately cultivated or obtained seeds that were Roundup-Ready and that he knew his crop would survive the pesticide. Bulk-spraying Roundup establishes awareness and intent.

The farmer was unable to provide a convincing explanation for why he would attempt to poison his entire crop, year after year, so the court concluded he was engaged in deliberate patent evasion.

It's worse than that: the farmer knew there was slight contamination of his field with Roundup Ready plants. So, he deliberately sprayed the field with Roundup to kill all the others, applying artificial selection to concentrate the trace of contamination. I believe he repeated this more than once. So, he was guilty of engaging in deliberate production of not trace, but concentrated patented seeds.

Hang on. He didn't plant the patented seeds; he planted his own seeds, which were then pollinated by his neighbour's Roundup-Ready plants. I can't see anything wrong with that.

So now he has a crop that consists of hybrids. These hybrids are all different; each plant is a different mixture of <farmer's variety> with Roundup-Ready. Some of those plants will have resistance to glyphosate. Then he sprays with Roundup; the resistant plants survive, the rest die. Now he has a harvest of seeds that are resistant to glyphosate, but in all other respects are a mixture. These seeds are not the ones sold by Bayer/Monsanto.

So is it the strain that is patented, or the gene?

If it's the strain that gets the patent, then the farmer-next-door isn't growing your patented strain, so he's in the clear. So it must be the gene, right?

If it's the gene, then it seems unreasonable to yell "patent violation" if you're spreading patented pollen over the entire midwest. You must either sell seeds that don't make (viable) pollen, or you have to accept that the farmer had his crop involuntarily infected with your IP because of your negligence.

I thought the GMO manufacturers bred sterility into their strains for just that reason.

Meanwhile, the farmer-next-door now has a grain-store full of resistant hybrid seeds, that won't (on the whole) fare as well as Roundup-Ready, because they're all different strains. That is, having the resistant gene isn't the whole story; you need a strain that is resistant AND grows well AND is consistent. That means an F1 hybrid, and you don't get that by just crossing strains; you have to get into selecting and cloning the favourable strain, growing that strain into a crop, and letting it cross with its (identical) siblings to make true-bred seeds.

Have I missed something?

You can't use selective breeding to escape a patent.

You can argue that patents of all sorts are invalid and shouldn't be granted. That's a totally coherent argument and not one you'll get a lot of pushback about on HN. I don't agree, but I don't, like, viscerally disagree.

The problem is we have a lot of weird special pleading arguments about this particular patent. The most popular argument, which I think we've done a pretty good job debunking here, is that Monsanto will sue you for unwittingly cultivating their seeds, as if they'll just sort of pop out of the woodwork saying "gotcha! you didn't realize it but you owe us one million dollars!". That never happens. You got in trouble with Monsanto if you quite wittingly applied their patented system, full stop.

Similarly, it's kind of a weird special pleading argument to say that a Monsanto seed can blow onto your property, and then, like, it's just something growing in the ground, man, you can't outlaw a plant, and two or three growth cycles later you somehow have a Roundup Ready seed that is unencumbered by patents. A good rule of thumb is that if you've filled in the "???" in the Underpants Gnome construction --- here: "1. seeds blow onto field, 2. ???, 3. profit", something has gone wrong with your logic. The direct conclusion of your logic is that these farmers could in fact go into business competing with Monsanto selling GM crops. Obviously: no.

The farmer new that some of the seeds in the field were the "roundup ready" ones that had blown over from the other field. Most of them were normal crops that would die when applied with roundup. He then applied the entire field with roundup, killing most of the crop in the field, with the explicit goal of saving all the remaining seeds so that he could plant them next year without paying monsanto.

No, the distinction was that the fact that they used RoundUp (which would have killed the crops they claimed to have planted) suggests a motive. The farmers claimed that the seeds had just drifted into their field by chance, Monsanto claimed they'd deliberately planted them. The fact that they sprayed the resulting crop with a herbicide that would have killed their own crop seriously calls the farmer's account into question. How would they possibly have known that enough seed had just blown over the road that it was safe to spray?

>Spraying them with Roundup is how you cultivate them.

Roundup is a herbicide. It kills normal plants. Monsanto sells seeds that were genetically modified to resist it. It doesn't make any sense to spray it on natural plants.

What is a farmer to do when mother nature infects his crop, against his will, with pollen from the GMO crop? I think the lawsuit should go the other way. Monsanto should pay for destroying the ability to grow heirloom seeds without getting infected. They want to keep it protected? Then require it to be grown in quarantine.

If you want to keep roundup ready crops from spreading among your heirloom crops, I would recommend against spraying the heirloom crops with roundup.

All the farmer had to do was not apply roundup to his crop when he hadn't planted the roundup resistant seeds.

Sure, but that doesn't change the fact that his crop is being pollinated against his will, and why should he lose the freedom to spray something on his crop because his neighbor planted a certain seed? Why does it have to infect everyone like a virus?

Because spraying roundup on non-roundup ready crops has 1 outcome, it kills them. There is no reasonable reason to do it other than to avoid the patent.

If roundup ready crops end up in your fields accidentally and then you don’t spray roundup you don’t run afoul of litigation.

Spray his crops with something that will 100% kill all of his original crop and only keeping the cross contaminated crop, which he will then specifically cultivate. Common now, it's really a shut and close case. He had no explanation as to an alternative valid reason to have done so and lost the case.

This is another case where patent law superseded physical trespass and pollution/littering laws.

Monsanto should have paid the farmer for polluting the farmer's field ALONG WITH being required to remove all Monsanto-owned plants. And if that means roundup-ing the whole field, paying for all damages treble, and then removing the living plants, so be it.

But no harm was done to the farmer, had the farmer not himself performed an act showing he was violating the patent. So, Monsanto didn't owe the farmer anything. The farmer had "unclean hands".

Thanks for the insight! Saw this in a documentary and it's been a while...

All made possible because Monsanto controls the seeds and the majority of glyphosate production so they could correlate consumption with who hadn't paid the toll.

The farmers were not trying to grow the patented seeds. They shouldn't be liable for their neighbor's trash blowing on their fields.

The use of Roundup is another travesty.

The farmer may have claimed they weren't trying to. The fact they used Roundup, which would have killed their crop if it weren't the GM seeds, indicates otherwise.

Some other farmer's trash blows into my field, it's mine.

And if you then spray Roundup on that trash to concentrate the patented trait, you've deliberately violated the patent.

Just like selling a used book violates the copyright?

No, obviously not like that at all. In particular, growing plants is copying them. Also, patents are not copyrights.

I entered no contract with the patent holder.

I get what you're saying from that perspective. It's just BS.

You don't get out of obeying the law just because you didn't sign anything. Nor is really really wanting to a justification for violating the law.

Patented seeds are not something you would have come up with yourself. This is pure envy creating a sense of entitlement.

But how did he get enough seeds by chance to have his whole field be round up ready?

He planted a field next to someone else's roundup ready crop. He then collected the seeds from the whole field. Next year he planted the seeds collected, waiting for the crop to start growing and sprayed roundup, which killed all seeds not roundup ready. Then the new crop went to seed and since all the parents were roundup ready, the seeds also were roundup ready (I'm not sure if roundup ready is a recessive or dominate trait, which will influence which % is roundup ready using basic genetics). Those final seeds were collected and were enough to have a whole field that was roundup ready next year.

That patent still should be enforced by any sensible court system.

(Matasano / Monsanto confusion intensifies)

I've said this before, but we put a sign up on the door of our Mountain View office, because people thought we were the evil mutant corn company.

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