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Comment by dangrossman | Hacker News Reader

IANAL: Why isn't patent exhaustion a solid defense to Monsanto's suits?

The anti-GMO documentaries I've seen have covered the "their seed blew into my field" and "I bought seed and signed a contract to only sew it one season then breached it" type lawsuits, but not this --

He's buying seed, from a third party, without signing any agreement with Monsanto. That seed isn't even necessarily Monsanto's product, but from plants that descended from those seeds. It may contain the patented genes, but those genes only got there from the original authorized sale of seed to whoever owned the elevator.

The exhaustion doctrine says that a patent holder's rights end at the point of an authorized sale. Once Apple sells you an iPad, you can do whatever you want with that iPad, including selling it to someone else, and aren't infringing the underlying patents the product implements.

So, why can Monsanto claim damages here?

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The argument is (partially) that you can't plant your iPad and have it grow into 1 million new iPads that you then sell to undercut Apple. Monsanto is arguing that the law needs to be considered specifically (differently?) for the case of self-replicating technologies since if the patent exhausts after 1 generation then the next year a customer could come on the market with millions of copies of their product. Software / book publishing business models dealt with this same issue via copyright that kept customers from reselling millions of copies of their product after buying it. Copyright doesn't apply to genetic code though.

Copyright doesn't apply to genetic code though.

Is this the fundamental question they will be arguing at the supreme court?

The third party (reseller) who bought the seed from Monsanto in the first place most probably breached the contract by producing and selling new seeds! This third party is probably the one who is to be sued, but patent law allows the farmer to be sued as well..

The can also only be sued once, where the farmer and everyone after that point could continue to resell dwecendents of that line.

IANAL either, but perhaps the seeds being descendants of authorized seeds, rather than authorized seeds, is the problem? It would be sort of like duplicating your authorized iPad with a 3D printer.

Even if you had an amazing 3D printer that could produce iPads, that doesn't mean you can sell it. You bought Microsoft Office, can you just duplicate it and sell it to your coworkers? I'm sure your software "duplicator" can produce exact copies. IANAL either, but I'm pretty sure your argument wouldn't stand up in court if you tried to sell your exact copies of your authorized copy of Microsoft Office.

You're confusing copyright law with patent law.

I'm wondering whether a good defense would be that with natural gene mutation, these seeds aren't the ones under patent.

He's buying seed, from a third party, without signing any agreement with Monsanto. That seed isn't even necessarily Monsanto's product, but from plants that descended from those seeds. It may contain the patented genes, but those genes only got there from the original authorized sale of seed to whoever owned the elevator.

Devil's advocate: even if you buy your DVD at Amazon you still cannot show it for $2 each to 50 people at your home or make copies for profit.

Maybe the sack containing the seed had some sort of disclaimer "by opening and using this you agree to..."

Devil's advocate: even if you buy your DVD at Amazon you still cannot show it for $2 each to 50 people at your home or make copies for profit.

Is that actually the case? Last time I sawy anything about this the publishers were trying to have it both ways, saying that on the one hand what you owned wasn't the disk it was a license to the content so you couldn't just do whatever you wanted with it, but if you tried to use that to say "well then I can rip the DVD and copy it somewhere else" you'd get an argument about only owning that specific format.

Yes it is. You need a license for public performances of copyrighted works; in America this is governed by Title 17 of the United States Code.

Re Devil's Advocate: that's a copyright rather than patent.

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