Supreme Court rules for Monsanto in case against farmer
npr.org
npr.org
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.
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.
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?
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.
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?
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.
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.
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.
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.
(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.)
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.
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
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.
edit: read the NYT article which has further comments by the court, http://www.nytimes.com/2013/05/14/business/monsanto-victorio...
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.
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'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."
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?
It would be disastrous if the "terminator" gene ended up cross pollinating neighboring crops resulting in all subsequent cultivars being contaminated with "terminator" genes...
Seems like something that would get out of hand.
Nowhere did there seem to be a serious issue about the reach of patent law or the breadth of Monsanto's IP.
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.
(Also, what's the clear-cut contract situation? I don't think there is one in this case.)
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.
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.
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.
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.
>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.)
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.
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.
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.
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.
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?
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.
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.
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.
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.
or hear the oral arguments: http://www.supremecourt.gov/oral_arguments/argument_audio_de...
9-0 decisions are easy when the facts of a case are so clear cut.
Under the current law, yes, the farmer was in the wrong. It just seems like the current law might need to be changed.
It's scary.
How would he verify that seeds were from Monsanto or not?
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...
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.
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.