US Supreme Court to Hear Monsanto Seed Patent Case | Hacker News Reader

US Supreme Court to Hear Monsanto Seed Patent Case

nytimes.com

141 pointscpeterso79 comments

"Mr. Bowman said that before his case, Vernon Hugh Bowman v. Monsanto, 11-796, was taken pro bono..., he had spent $31,000 on legal fees and handled much of the legal research himself, using a computer at the library because he does not own one."

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

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

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

Monsanto uses the terminator gene technology to stop the seed replication beyond first generation.

No, they don't [0]:

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

Also, regarding this:

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

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

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

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

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

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

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

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

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

So it isn't enough to say:

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

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

Hey thanks for the Monsanto information. I was unaware of these updates.

Regarding the Macbook analogy, agreed, but why would patent law hold true here ? Just trying to understand. A Macbook doesn't replicate by itself.

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

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

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

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

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

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

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

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

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

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

That's a lot easier when you're not trying to improve edible seeds (soybeans, corn, etc.). Although as I understand it, Monsanto also developed techniques for making the seeds infertile, but got so much pubic backlash that they never deployed the technology. It seems to me that they're in a bit of a bind, where whatever they do will be perceived as "evil" (perhaps due to previous bad behavior on their part).

This is exactly right. There are two ways that Monsanto can sustain their business. One is technological and the other relies on the courts. Monsanto is called evil, either way, often by people who just get some vague icky feeling about GMOs, even if they understand very little about the business or the technology.

There are two ways that Monsanto can sustain their business. One is technological and the other relies on the courts. Monsanto is called evil, either way, often by people who just get some vague icky feeling about GMOs, even if they understand very little about the business or the technology.

This suggests a third way out: they could change their name.

For a growing number of people, the name "Monsanto" may as well be "Diablo". For better or worse, labels are abstractions for humans to comprehend the world, and they often influence our thinking in ways we don't perceive and can't resist. Just look at how destructive labels have been throughout history.

So if your name means evil, then changing it may be a way out.

This isn't as unrealistic as it sounds. The only reason I'd thought badly of Monsanto was due to the tales of (sometimes exaggerated) horror from the people around me. But if Monsanto does their rebranding with some finesse, and completely abandons their old name, then it wouldn't be as easy for the general public to merely lead each horror story with, "So here's what that company, formerly Monsanto, used to do..."

In fact, they'd likely have to qualify the horror story with "used to do" (as opposed to "currently acts this way") since a new label would force most people to think of them as a new company, whether or not they realize it. "New label = new thing" is practically hardwired into our brain, and the effects reveal themselves when we communicate.

This is interesting. For example, anyone who has seen the Corporation loves to go on and on about Monsanto's industrial chemical business, agent orange, and so on. Which is fine, I guess, but Monsanto doesn't even have a chemical division anymore. It was spun off as Solutia in 1997. So, when we're trying to have a serious conversation about the harms and benefits of GMOs, instead we get a bunch of noise about how Monsanto is evil because of their participation in a business they're no longer in and that has nothing to do with agriculture. Huh?

Otherwise smart people are just blindly angry about GMOs for some reason. It's really disappointing.

Some people are angry about Monsanto's actual behavior, not about the concept of genetically modified organisms.

Like declaring public opinion bankruptcy?

How well did that work for Xfinity?

Or Blackwater, for that matter?

How well did that work for Xfinity?

Well, https://encrypted.google.com/search?q=xfinity

"XFINITY by Comcast"

Changing one's name doesn't work if you merely add to it.

Seems likely then that a lot of people dont like what Monsanto is doing, no matter how they sustain it. Also, its all a matter of degree, and it seems Monsanto goes to extremes, which gets people upset.

I would submit that, first of all, the cases in which Monsanto is seen as having gone to extremes were universally cases in which the farmer willfully violated his contract with the company and then lied about it (all while playing the persecuted small guy to the press). Luckily, the courts didn't buy it. [0]

Second, I have yet to hear a serious argument against the tech that Monsanto is producing. I hear a lot about how they're raping the poor farmers, but, as far as I know, those farmers aren't being forced to do business with Monsanto. I'm pretty sure they've chosen to do business with Monsanto because their seeds produce higher yields at lower prices. That sure seems like a positive to me. I also hear a lot of arguments that are basically various forms of "I think this tech sounds icky."

[0] http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...

Ha! Universally, my ass.

If you read your own post, you'll see that you claim that every case involves: a) a contract b) a breach of mentioned contract

Yet you seem to reference a case in which there was no contract between Monsanto and the farmer, thus contradicting the aforementioned universal claim a.

Can you explain this seeming paradox? Or are you just abusing the language to paint a pretty picture?

People always hate companies providing capital (monetary or technological) for agriculture. For example, banks that charge interest on farm loans have been vilified through history.

Farmers are sympathetic figures deeply tied into national culture. They use this to their advantage. That's how we have tens of billions of dollars in agricultural subsidies and any company that tries to hold farmers to contracts become the target of populist rage.

The populist notion of the noble yeoman suggests that most people don't know any actual farmers. The contemporary farmer isn't a very sympathetic character.

Careful there. I grew up on a farm and have relatives that are yet farmers and are no more unpleasant than anyone else.

Well I wouldn't go that far. My wife grew up in rural Iowa, in farm country. They're perfectly pleasant people. But politically, there is no winning against them. And that's been the case since forever. Stuff like this: http://historymatters.gmu.edu/d/5354/ has tremendous appeal.

"Real" farmers are giant conglomerates like Conagra. What people think of as farmers though are usually just employees or contractors. And those people are fine. The big agricultural corporations like it when people conflate the two.

I dunno. Where I live, most farms are run by small family-owned corporations. I know many farmers. I also think that giving a corporation essentially market power over growing crops is deeply misguided.

I personally consider them evil for the reasons described at the end of glanifrons's comment.

There is room for debate here, but one certainly does not have to be ignorant to regard Monsanto as "evil".

Ok so it seems you are concerned about an organic farmer whose crops are contaminated by Monsanto's seed, who then loses his 'organic' label and gets sued by Monsanto.

Here's a hypothetical question: Imagine that Monsanto only sued the farmer if his crop was contaminated AND he used Monsanto's Roundup-Ready herbicide (or a generic equivalent that specifically targets Monsanto crops like Roundup does). Also imagine that he could keep the 'organic' label by showing that there was only a small amount of contamination. In this scenario would you still consider Monsanto to be evil?

There is nothing about using Roundup that would make one culpable. Roundup Ready mainly means "able to tolerate tons of glyphosphate without dying." Glyphosphate works in use cases apart from Roundup ready crops. I used it to kill poison ivy in my backyard at one point.

Sadly, you and I are not "Roundup Ready" and don't have any mods to our endocrine system to help us cope with eating it and the additives (surfactants) used to bind it to crops.

If a farmer used Roundup, his crop could not be considered organic.

Ok, but the question remains: If Monsanto's policy was to only sue farmers who have contaminated crops AND who use a herbicide designed to kill everything except Monsanto crops, would you consider Monsanto to be evil?

Could someone link to a lawsuit in which a farmer's crop was contaminated with Monsanto seed without his knowledge and then sued by Monsanto? I hear this enough that I must insist on a citation.

I doubt they can. This is the most commonly cited case [0] but it's pretty clear from the facts that the farmer was not an innocent, unwitting victim. This claim is made in bad faith so often as to make any discussion about Monsanto almost pointless from the start.

[0] http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...

Wow, that Wikipedia article's history is interesting.

What I can see from a cursory look at the court documents is that the court dismissed on grounds of irrelevance his claim that he neither used roundup nor any similar herbicide on the crop in question.

First, you're begging the question. Second, I think you should reconsider words like "evil" to describe the type of work Monsanto does. You're choosing a pretty emotional word about a mostly banal patent litigation.

I don't think this is banal though.

I get a lot of flack for this in political circles but I think that IP law is a field which has more importance for the future regarding individual rights than, say, abortion. We are talking about IP-based monopolies here over crops, medical tests, and the like, and the scope of these patents is just unprecedented. I don't know what to call those who want such power other than evil.

The Supreme Court has been pretty good recently on these issues, for example overturning patents on recommended results in medical tests (and therefore allowing competing ways of measuring the same thing), greatly restricting uses of secondary patents in medicines and the like. Now they are considering two cases:

1) When you patent a self-replicating technology, is the patent exhausted when the product self-replicates, particularly when the purpose of the patented object is self-replication (patented soybean seeds have the purpose of producing more soybean seeds and that's what they are sold for the purpose of doing). I suppose this would have some implications regarding home rose gardens and the ability to legally share patented clones but aside from emerging transgenic crops the implications are not very heavy.

2) Can a part of the human genome in the abstract be patented? Who owns your genes? I think this must necessarily follow that these can't be patented from Prometheus v. Mayo (decided last year, no IANAL) because that case held that you couldn't patent what the result of a drug test meant. But if this can't be patented, then surely patents on crops are exhausted after first sale.

No, those are just the only two options for Monsanto to guarantee sustained profits without producing further advances. It's not clear that they deserve to continue making money like that. From a macroeconomic perspective of trying to feed the most people for the least money, it's almost certainly better to let Monsanto's inherently self-duplicating (and thus not naturally supply-limited) product do it's thing, let their legal department and genetic DRM research stop wasting money, and have their productive research be directly funded by the government if it looks promising enough.

A "vague icky feeling" like anaphylaxis?

http://www.businessweek.com/debateroom/archives/2007/12/gmo_...

https://www.signaturemd.com/modern-poison-are-genetically-mo...

Not one person I know who is against GMO foods is uneducated about it - quite the opposite... they aren't interested until they start researching the topic. I couldn't care less until my wife started researching it (due to severe reactions by family members). Before then, the only thing I had against GMO was fishy-tasting tomatoes.

Another problem I have with mass deployment of GMO crops is the reduction of active species. Imagine what a simple blight would do to our food supply. Example: http://en.wikipedia.org/wiki/Great_Famine_(Ireland)

That sounds alot like support for DRM. 'Why would you try making laws prohibiting the duplication of inherently copiable stuff (seeds/bits), it would be so much better to use technical measures to make coping prohibitavly difficult'.

The technology to prevent the "copying" of Monsanto's seeds exists:

http://en.wikipedia.org/wiki/Genetic_use_restriction_technol...

Of course, they were called destroyers of the natural order of all that is good when they invented it, so they've vowed not to use it. Instead, they ask anyone buying their seeds to sign a contract agreeing not to save those seeds, which should eliminate the need for the terminator gene. Of course, farmers sign this contract because Monsanto's seeds are a really, really good deal for them! Unfortunately, guys like this want to have their seeds and save them, too, even though they signed a contract saying that they wouldn't. Even more unfortunately, most people who hear about cases like this reactively invent a small-farmer-vs-the-evil-corporation narrative that has nothing to do with reality.

No, he didn't save the seeds he contractually agreed not to when he made his purchase from Monsanto. The case is about commodity seeds he bought from a grain elevator that happened to include Monsanto seeds. Those seeds were not covered by the original contract, but Monsanto is claiming the right to extend that contract at will.

That is indeed a distinction important to this particular case, but not my general point. I should have been more clear.

DRM is illegal to circumvent, no matter how trivial, due to the DMCA.

Given time, technological means always fail and it's necessary to resort to law. In this case, because terminator seeds will never be able to prevent 100% of seeds from being fertile.

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

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

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

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

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

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

Personally, I think:

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

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

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

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

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

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

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

The first major biotech "invention" was Humulin. Basically putting the human gene for insulin in bacteria to produce human insulin. Humulin launched the biotech industry. You should consider how your logic applies to that case. While I find your reasoning appealing, I don't think it is sound or applicable.

But in that case, they don't sell the bacteria, do they? (that would be foolish) They sell the insulin it produces. You cannot take the insulin and make more insulin with it, so no-one can take the product they bought and "let nature take its course" and end up with more.

However, if someone were to use the same process they used for gene insertion (which is more likely to be an invention than a gene they simply discovered), they may have grounds to sue.

However, if someone were to use the same process they used for gene insertion (which is more likely to be an invention than a gene they simply discovered), they may have grounds to sue.

The process for gene insertion for insulin was the Herbert/Boyer recombinant DNA patent that was widely licensed by Stanford: http://www.genome.duke.edu/centers/cpg/case-histories/semina...

If I had to pick Genentech protecting their drug via a patent on an E.coli bacteria containing human insulin gene vs. the method to move the gene I'd take the former for sure. The method was much more broadly useful.

This is an excellent point - if Monsanto wants to control second-generation seed, then they should become farmers.

This is the road a strident anti-patent stance leads you down. You end up arguing that capital intensive R&D companies should vertically integrate and get into the business of selling end-user products, because that's the way to protect R&D investment without patent protection. But is that a good solution (ideology aside)? Doesn't that hinder useful things like specialization and division of labor? Isn't it better for Monsanto to focus on genetics and farmers to focus on farming?

If you make a special configuration of life, you should be ready and willing to deal with the consequence of selling that life. E.g. if I buy a purebred puppy from a breeder, does that breeder get to tell me not to breed my dog? No, they don't. And lo and behold, as if by magic, there is still financial incentive in selling specially bred dogs!

Monsanto is just being greedy here, and the net impact on their profits will be minimal even if they lose. There will always be a market for them to sell engineered life "factory fresh" even if people use secondary generation of seed.

> You should consider how your logic applies to that case. While I find your reasoning appealing, I don't think it is sound or applicable.

This is problematic - you can imagine a NPE taking this to heart and simply producing proteins for all the known human genes and contesting any future treatments based on protein therapy.

Perhaps recombinant gene therapies should be regulated in the same way as pharmaceuticals where the first company to market would be protected for some time from competitors who would sell the same compound. In this system, using an unrelated peptide that had the same effect as insulin would be permissible but simply re-cloning human insulin would not be.

As a side-note, I think there was a technically-innovative approach [1] used to make humulin which involved two non-naturally occuring nucleotide sequences. I suppose these might be patentable for glabrifons'...

1 - Unfortunately, I can only find this source: http://books.google.com/books?id=gP4V4uGqp94C&pg=PA755&#...

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

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

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

3. Ugh...

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

It may be difficult but that doesn't mean one gives corporations this sort of strangehold on the industry.

Let's take a close example, rose hybridization. Most new popular rose hybrids are protected under ordinary plant patents. If you want to grow the plant you need a plant patent license to do so and buying a plant at a store gives you this. There need not be an explicit license from anyone but the one who actually makes the clones.

This is a good balance because the plant patent act does not reach sexual reproduction. One does not need a plant patent license to hybridize two other patented varieties (rose hybridization is hard too). This means that the plant patent is very limited in scope. Transgenic patents which cover sexual reproduction however are largely unlimited in scope and therefore very dangerous and it is for this reason that Monsanto should lose unless Congress speaks clearly that such may be patented.

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

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

"3. Ugh..."

http://www.npr.org/templates/story/story.php?storyId=1290104...

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

http://articles.latimes.com/2012/feb/17/local/la-me-gs-organ...

http://www.npr.org/blogs/thesalt/2012/02/27/147506542/judge-...

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

http://www.thefutureoffood.com/

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

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

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

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

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

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

This process is certainly not extinct.

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

Well no tech really goes extinct. Kevin Kelly has a great piece on it: http://www.kk.org/thetechnium/archives/2011/04/technologies_...

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

I think that applies to pretty much any industry. It can take many years before clones are even 95% as high quality as the "original" product in a market. So in a way that acts as a buffer and patent protection anyway, because most people will still buy the original (usually do), while preserving high competition and low prices.

I think it woulf actually be more scary if biotech seed companies pushed non-reproducing plants. Covering the country and world in food that has to be built in a lab seems like a bad idea.

This is a must watch.

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

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

http://news.ycombinator.com/item?id=5195676

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

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

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

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

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

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

He discovered this because he sprayed them with Roundup.

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

Note 2 things:

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

2. Monsanto has a very simple solution: contracts with farmers.

Anyone else getting a ssl warning?

I'm not.

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

Mixed secure/insecure causes the page to display without any CSS for me.

So tptacek--will you be testifying there?

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

https://www.techdirt.com/articles/20130218/02022922012/supre...

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

See SCOTUSblog for more:

http://www.scotusblog.com/2013/02/argument-preview-stakes-ar...

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

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

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

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

Define "terrible".

Or is terrible anything you disagree with?

Because you haven't read a SCOTUS opinion recently except the bits and pieces of Citizens United you saw on HuffPo?

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

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

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

After reading the argument transcripts for the Monsanto case, i'm not optimistic. I'm a supreme court bar member, so my plan was to listen to Myriad in person.

Actually I disagree. The court has been surprisingly good in patent cases at least since Bilsky. As recently as last term, the Supreme Court ruled that interpretations of drug test results couldn't be patented (that works heavily against Myriad in the other genetic case before the court btw).

I am pretty optimistic that we will see a ruling in these two cases saying:

1. Yes, you can patent transgenic organisms, but the patent is exhausted after first sale, and

2. You can't patent genes in the abstract or what it means for a gene to be present.

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