Bowman vs Monsanto, genetically modified soybean case

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  • #1
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This was my post from another thread on the safety of GM (genetically modified) food. To me, patent laws are much more dangerous to our food supply than the food itself.

If I buy a genetically modified plant, the company who sold it to me retains patent rights over the plant, including the seeds. So, I'd be infringing on the patent to take the seeds from the previous year's crop to start a new crop.

It gets even more confusing when the genetically modified gene becomes so prevalent that the vast majority of any one crop has this genetic modification. Then, the patent company could theoretically go after any farmer it wanted.

This is not a hypothetical situation, by the way. Such a case is making its way through the legal system right now. Here is a Wired article about the case:

http://www.wired.com/wiredscience/2012/04/arstechnica-agriculture-patents/
The company didn’t want to be in the business of making a one-time sale, so when Monsanto sold “Roundup Ready” soybeans to farmers, it required them to sign a licensing agreement promising not to re-plant future generations of seeds.

However, farmers remain free to sell the soybeans they grow in the commodity market, where most are used to feed people or livestock. Roundup Ready soybeans have become extremely popular; they now account for 94 percent of all acres planted in Indiana, for instance. Vernon Bowman, an Indiana farmer, was a customer of Monsanto who realized that Roundup Ready soybeans had become so common in his area that if he simply purchased commodity soybeans from a local grain elevator, the overwhelming majority of those soybeans would be Roundup Ready. Commodity soybeans are significantly cheaper than Monsanto’s soybeans, and they came without the contractual restriction on re-planting.

So Bowman planted (and re-planted) commodity soybeans instead of using Monsanto’s seeds. When Monsanto discovered what Bowman was doing, it sued him for patent infringement.
To summarize, a farmer just bought random commodity soybeans from the market and planted them, and he was sued. The farmer lost his case in district court, and the Supreme Court agreed last month to hear it:

http://m.npr.org/news/Technology/162949288

I hope the Supreme Court realizes that a company cannot claim a patent on ALL the generic soybeans in the state. This is a frightening prospect.
 

Answers and Replies

  • #3
chiro
Science Advisor
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This kind of behaviour unfortunately, is not new.

It used to be that in order to becoming a corporation (in the US) you had a charter and you needed to renew that charter (i.e. someone else had to approve its renewal) and the charter was renewed only if that corporation was doing society a service (that was the idea) and if it wasn't, then it would be terminated.

Nowadays corporations (note that corporation derives from the word corpse just like mortgage derives from the word mortuary that translates into "death-grip") are treated like individuals and what they do in law is that they have completely bastardized what a person is, and what a man is and every person or registered object is basically a dead "person" and not an actual "man" (there is a difference and I implore those who are interested to read a legal dictionary if they can stay awake for long enough).

Now I mention this because this is what is happening to biological objects in regard to patents.

It used to illegal to patent anything biologically with the exception of things like plant varieties, but there was a landmark case (similar to when corporations attained the rights of individuals) that said it was allowed to patent some kind of bacteria (I forget the specifics but you can look it up) and from there on you got companies starting to patent seeds and now you are seeing these biotech companies move into other things like animals.

The exclusion for biological things was there for a reason and the judge (who was either incompetant or knowingly and deceptively playing dumb) set a precedent (much like the corporations attaining individual status) that allowed the Monsantos of the world to eventually patent seeds.

The monopoly system was "supposed" to encourage innovativeness and encourage competition but unsurprisingly it has destroyed it like all monopolies do when someone realizes how to game the monopolistic system (i.e the big fish that can swallow everything will swallow everything when they have the monopoly).

It's happened in every monopoly in one form or another and it's not surprising (to me) in the least.
 
  • #4
Evo
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Please read the rules for posting in P&WA. All claims MUST be accompanied by appropriate sources.
 
  • #5
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I hope the Supreme Court realizes that a company cannot claim a patent on ALL the generic soybeans in the state. This is a frightening prospect.
This is sounding a lot like the Schmeiser case in Canada from a while back. Basically a guy used their seeds without permission and then tried to lie about it.
 
  • #6
chiro
Science Advisor
4,790
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Please read the rules for posting in P&WA. All claims MUST be accompanied by appropriate sources.
Corporation Charter:

http://reclaimdemocracy.org/corporate-accountability-history-corporations-us/

Corporate Personhood:

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

Land-mark Patent Case:

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

Legal definition of a person:

http://legal-dictionary.thefreedictionary.com/person

Legal definition of a man:

http://legal-dictionary.thefreedictionary.com/man

and I quote

It was considered in the civil or Roman law, that although man and person are synonymous in grammar, they had a different acceptation in law
History of patents (and this is only one link):

http://www.ipo.gov.uk/types/patent/p-about/p-whatis/p-history/p-history-tudor.htm [Broken]

The fifth amendment:

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Self-incrimination

Admissibility legal definition:

http://legal-dictionary.thefreedictionary.com/admissible

You can explore this subject if you wish at your leisure.
 
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  • #8
Evo
Mentor
23,154
2,801
You can explore this subject if you wish at your leisure.
Sources for things that I bolded? This is the kind of thing I want stopped and that is not allowed.

This kind of behaviour unfortunately, is not new.

It used to be that in order to becoming a corporation (in the US) you had a charter and you needed to renew that charter (i.e. someone else had to approve its renewal) and the charter was renewed only if that corporation was doing society a service (that was the idea) and if it wasn't, then it would be terminated.

Nowadays corporations (note that corporation derives from the word corpse just like mortgage derives from the word mortuary that translates into "death-grip") are treated like individuals and what they do in law is that they have completely bastardized what a person is, and what a man is and every person or registered object is basically a dead "person" and not an actual "man" (there is a difference and I implore those who are interested to read a legal dictionary if they can stay awake for long enough).

Now I mention this because this is what is happening to biological objects in regard to patents.

It used to illegal to patent anything biologically with the exception of things like plant varieties, but there was a landmark case (similar to when corporations attained the rights of individuals) that said it was allowed to patent some kind of bacteria (I forget the specifics but you can look it up) and from there on you got companies starting to patent seeds and now you are seeing these biotech companies move into other things like animals.

The exclusion for biological things was there for a reason and the judge (who was either incompetant or knowingly and deceptively playing dumb) set a precedent (much like the corporations attaining individual status) that allowed the Monsantos of the world to eventually patent seeds.

The monopoly system was "supposed" to encourage innovativeness and encourage competition but unsurprisingly it has destroyed it like all monopolies do when someone realizes how to game the monopolistic system (i.e the big fish that can swallow everything will swallow everything when they have the monopoly).

It's happened in every monopoly in one form or another and it's not surprising (to me) in the least.
 
  • #9
172
1
I think the problem is that once the seeds are sold on the open market, anybody who buys those seeds has no contract with Monsanto and can plant them as they wish. At least, that would be my feeling with no background in the law. This reminds me a little of the international edition textbook case. To me, once Monsanto sells the plants to the original buyer, and the buyer sells the beans on the commodity market as he is allowed to do, then Monsanto has no more control over the seeds. Just like if I buy a new book, the publisher gets money on that first sale, but the publisher has no right to continue getting money every time it trades hands afterwards. It's not an exact parallel, but to me, it seems reasonably similar.

If this case is upheld, it sounds like no farmer in any state where Monsanto soybeans are common can buy commodity soybeans and plant them, even if there is no proof that the specific soybeans bought were Monsanto seeds (in this case, 97% of all soybeans from the area happen to have the Monsanto gene, but what happens if this number were 90%? 75%? 50%? Would Monsanto be able to sue then?).

Then, edward brings up a good point. What happens with GM plants that cross-pollinate? Does Monsanto keep the rights to a specific gene when a farmer had no ability to control such pollination?

It's just worrisome that a company can control 100% of a product even when they only could possibly claim 97% of it (or less... this problem would still arise if the percentage were, say, 80%).
 
  • #10
SixNein
Gold Member
42
16
This was my post from another thread on the safety of GM (genetically modified) food. To me, patent laws are much more dangerous to our food supply than the food itself.

If I buy a genetically modified plant, the company who sold it to me retains patent rights over the plant, including the seeds. So, I'd be infringing on the patent to take the seeds from the previous year's crop to start a new crop.

It gets even more confusing when the genetically modified gene becomes so prevalent that the vast majority of any one crop has this genetic modification. Then, the patent company could theoretically go after any farmer it wanted.

This is not a hypothetical situation, by the way. Such a case is making its way through the legal system right now. Here is a Wired article about the case:

http://www.wired.com/wiredscience/2012/04/arstechnica-agriculture-patents/


To summarize, a farmer just bought random commodity soybeans from the market and planted them, and he was sued. The farmer lost his case in district court, and the Supreme Court agreed last month to hear it:

http://m.npr.org/news/Technology/162949288

I hope the Supreme Court realizes that a company cannot claim a patent on ALL the generic soybeans in the state. This is a frightening prospect.
I've been waiting for a case like this to come up. Russ and I had a discussion about GM technology a while back, and I predicted this very case would occur. Between patents, weed resistance, and seed contamination the companies can simply corner the market.

I wouldn't bet on the Supreme Court. It's a problem with the legislator unwilling to act to fix a very very very broken patent system. Information based patents need to be thrown out completely. Since there is an industry for those patents now, I doubt anyone is ever going to act. It's like our prison system or military system and on and on.
 
  • #11
SixNein
Gold Member
42
16
I think the problem is that once the seeds are sold on the open market, anybody who buys those seeds has no contract with Monsanto and can plant them as they wish. At least, that would be my feeling with no background in the law. This reminds me a little of the international edition textbook case. To me, once Monsanto sells the plants to the original buyer, and the buyer sells the beans on the commodity market as he is allowed to do, then Monsanto has no more control over the seeds. Just like if I buy a new book, the publisher gets money on that first sale, but the publisher has no right to continue getting money every time it trades hands afterwards. It's not an exact parallel, but to me, it seems reasonably similar.

If this case is upheld, it sounds like no farmer in any state where Monsanto soybeans are common can buy commodity soybeans and plant them, even if there is no proof that the specific soybeans bought were Monsanto seeds (in this case, 97% of all soybeans from the area happen to have the Monsanto gene, but what happens if this number were 90%? 75%? 50%? Would Monsanto be able to sue then?).

Then, edward brings up a good point. What happens with GM plants that cross-pollinate? Does Monsanto keep the rights to a specific gene when a farmer had no ability to control such pollination?

It's just worrisome that a company can control 100% of a product even when they only could possibly claim 97% of it (or less... this problem would still arise if the percentage were, say, 80%).
I wouldn't be surprised to see the Supreme court rule in favor of Monsanto. The fact is that they do have the patent on it, and the farmer knew (think willful infringement) that he would be in violation of the patent.

The simple truth is that patents should have never been allowed in genetics, software, or other information based areas. The fact that one can patent software BLOWS my mind. The courts might as well allow people to patent science books and theories.
 
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  • #12
172
1
I wouldn't be surprised to see the Supreme court rule in favor of Monsanto. The fact is that they do have the patent on it, and the farmer knew (think willful infringement) that he would be in violation of the patent.
I just don't see how a company can tell people what to do with a product after it has been sold one, two, or two dozen times (commodity soybeans are just like any other commodity, being bought and sold many times on the open market by traders and speculators).

If the farmer had engineered his own soybean gene identical to Monsanto's, and was trying to sell it, I could see how that's patent infringement. But just planting random commodity soybeans he bought legally? Planting a soybean should not be illegal (or even a civil penalty), unless you've specifically signed a contract with the company saying that you won't plant those seeds.

A farmer buying soybeans from the open market has not necessarily signed any contract with Monsanto, and I don't see how Monsanto retains control over their soybeans any more than Apple retains control over iPhones after they sell them.
 
  • #13
SixNein
Gold Member
42
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I just don't see how a company can tell people what to do with a product after it has been sold one, two, or two dozen times (commodity soybeans are just like any other commodity, being bought and sold many times on the open market by traders and speculators).

If the farmer had engineered his own soybean gene identical to Monsanto's, and was trying to sell it, I could see how that's patent infringement. But just planting random commodity soybeans he bought legally? Planting a soybean should not be illegal (or even a civil penalty), unless you've specifically signed a contract with the company saying that you won't plant those seeds.

A farmer buying soybeans from the open market has not necessarily signed any contract with Monsanto, and I don't see how Monsanto retains control over their soybeans any more than Apple retains control over iPhones after they sell them.
Take this server for an example. The server is probably running linux and maybe apache. Suppose linux violates numerous patents belonging to Microsoft. In theory, Microsoft could sue the forum owners and potentially even us for patent violation. It's unlikely because they would be afraid of damaging their base. But let their company get in enough trouble, and it becomes a real possibility.

I'd say about every person here is violating some kind of software patent. There is just too many of them and they are sooooooo broad. Software patents are essentially patents on math.

It's getting to the point that companies are pulling out of the US....
http://www.guardian.co.uk/technology/appsblog/2011/jul/15/app-developers-withdraw-us-patents
 
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  • #14
18
9
Jack21222 said:
This was my post from another thread on the safety of GM (genetically modified) food. To me, patent laws are much more dangerous to our food supply than the food itself.
Research isn't free. Shouldn't the scientists spending so much of their time and effort to make a better crop be compensated?

Then, edward brings up a good point. What happens with GM plants that cross-pollinate? Does Monsanto keep the rights to a specific gene when a farmer had no ability to control such pollination?
For one thing this doesn't happen very often. Secondly this was the reason the terminator gene was invented. It was in response to a legitimate concern over the potential of unintentional cross breeding, for which GMO was branded the devil. Then the fix for it came, and now Monsanto is branded the devil for fixing a problem? See, it doesn't matter what they do, they will never be viewed in a positive light.
 
  • #15
172
1
Research isn't free. Shouldn't the scientists spending so much of their time and effort to make a better crop be compensated?
Yes, of course, which is why it's ridiculous for you to suggest that anybody would say otherwise.

However, even you must admit that there are ways to make money other than to claim ownership of every single generic soybean in an entire state because most of them (not even all of them) carry your gene.
 
  • #16
18
9
Yes, of course, which is why it's ridiculous for you to suggest that anybody would say otherwise.
Except that you and a lot of other people actually do say otherwise. Your statement about patent laws being a threat to our food supply is basically saying just that. The scientists are devoting a lot of time to making the product. In addition to that the company is going out on a limb by investing large sums of money to make it happen. Without the ability to protect their work, why would they take this kind of risk?


Yes, of course, which is why it's ridiculous for you to suggest that anybody would say otherwise.

However, even you must admit that there are ways to make money other than to claim ownership of every single generic soybean in an entire state because most of them (not even all of them) carry your gene.

From what I'm seeing they aren't claiming ownership over over single generic soybean, they're claiming ownership over the soybeans that they modified. He violated the terms of his agreement with them.
 
  • #17
172
1
Except that you and a lot of other people actually do say otherwise. Your statement about patent laws being a threat to our food supply is basically saying just that. The scientists are devoting a lot of time to making the product. In addition to that the company is going out on a limb by investing large sums of money to make it happen. Without the ability to protect their work, why would they take this kind of risk?





From what I'm seeing they aren't claiming ownership over over single generic soybean, they're claiming ownership over the soybeans that they modified. He violated the terms of his agreement with them.
But he didn't buy the soybeans from Monsanto. He bought second-hand beans of unknown origin. It just so happened that most of them were Monsanto. He did not violate the terms of his former agreement with him. Monsanto could have sued any farmer for doing the same, even if they had never had an agreement with Monsanto.

I'm certain Monsanto's agreement doesn't say "once you buy soybeans from us, you're never allowed to plant any other soybean again." He bought bulk soybeans from the commodity market, just like you or I could from CBOT, and planted them. Monsanto is saying that since so many of these commodity soybeans would have the Monsanto gene, you'd violate their patent to plant them, even if you had never signed an agreement to not plant Monsanto beans.

At least, that's how I read the case. If you can find a source that says this case is just about this one particular farmer and a particular contract that farmer signed, I'll change my mind. But as far as I can tell, this isn't a "breach of contract" case, this is a "patent infringement" case.
 
  • #18
18
9
But he didn't buy the soybeans from Monsanto. He bought second-hand beans of unknown origin. It just so happened that most of them were Monsanto. He did not violate the terms of his former agreement with him. Monsanto could have sued any farmer for doing the same, even if they had never had an agreement with Monsanto.

I'm certain Monsanto's agreement doesn't say "once you buy soybeans from us, you're never allowed to plant any other soybean again." He bought bulk soybeans from the commodity market, just like you or I could from CBOT, and planted them. Monsanto is saying that since so many of these commodity soybeans would have the Monsanto gene, you'd violate their patent to plant them, even if you had never signed an agreement to not plant Monsanto beans.

At least, that's how I read the case. If you can find a source that says this case is just about this one particular farmer and a particular contract that farmer signed, I'll change my mind. But as far as I can tell, this isn't a "breach of contract" case, this is a "patent infringement" case.
Reading more closely you're right, it is a patent infringement case. In any case, the answer is still largely same. He knowingly purchased seeds that were not generic, they were patented. I'll also point out that this is absolutely no different from software piracy. Here we have a product that took many years and no doubt many millions to produce, it's also a product that can be replicated potentially millions of times and the only way the costs can be recouped is to charge per use.

Hypothetical scenario: Let's say I bought a game, then started making copies and selling them at a fraction of the retail price and didn't pay the game developers any money, is what I'm doing wrong?
 
  • #19
Hurkyl
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Hypothetical scenario: Let's say I bought a game, then started making copies and selling them at a fraction of the retail price and didn't pay the game developers any money, is what I'm doing wrong?
How about another scenario:

You buy a game under a license that forbids you from copying it, but permits you to resell it without any licensing restrictions.

Somebody else buys the game from you, makes copies, and sells it.

Did the somebody else do anything wrong?
 
  • #20
Vanadium 50
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Consider this: you have a patent on a better mousetrap, and sell these mousetraps. I build a mousetrap myself using your design and sell it. Am I infringing?

I build it for my own use. Am I infringing?

These are actually self-replicating mousetraps. I build one myself and I sell its progeny. Am I infringing?

A buy a large random bunch of self-replicating mousetraps, knowing that most of them will use your design. I sell their progeny. Am I infringing?
 
  • #21
SixNein
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Consider this: you have a patent on a better mousetrap, and sell these mousetraps. I build a mousetrap myself using your design and sell it. Am I infringing?

I build it for my own use. Am I infringing?

These are actually self-replicating mousetraps. I build one myself and I sell its progeny. Am I infringing?

A buy a large random bunch of self-replicating mousetraps, knowing that most of them will use your design. I sell their progeny. Am I infringing?
Information patents aren't as simple as the mousetrap example.

In the case of soybeans, one would have to do genetic testing on each and every seed to avoid the issue of patents unlike the mousetrap that's clear to identify. And then how close would it need to be to violate the patent?

In software, the example would look more like:
Someone patented the physics of a mousetrap.
You made a car.
Are you infringing?

And that's why there is a nuclear arms race in software.
 
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  • #22
SixNein
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Research isn't free. Shouldn't the scientists spending so much of their time and effort to make a better crop be compensated?



For one thing this doesn't happen very often. Secondly this was the reason the terminator gene was invented. It was in response to a legitimate concern over the potential of unintentional cross breeding, for which GMO was branded the devil. Then the fix for it came, and now Monsanto is branded the devil for fixing a problem? See, it doesn't matter what they do, they will never be viewed in a positive light.
Your not talking about compensation. You are talking about a government issued monopoly for 20 years.

How does weed resistance effect the usefulness of the invention 20 years out?

Other scientists will also have to pay the patent fees to study it.
 
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  • #23
Hurkyl
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In software, the example would look more like:
Someone patented the physics of a mousetrap.
You made a car.
Are you infringing?

And that's why there is a nuclear arms race in software.
I just want to echo this. People may think you're joking or exaggerating. Let me describe a real example.

Suppose you want to tell your friend a particular point on the unit circle. You might specify it's (x,y) coordinates. But if you're lazy, you might specify just the x coordinate, and whether you mean for the positive or the negative corresponding value for y.

Innocent enough, right?

If you do the same thing for the curve defined by the equation y2 = x3 - x, then to the best of my knowledge, you've just violated one of Certicom's patents.

As far as I know, Certicom was a corporation whose sole purpose in existing was to file for frivolous patents regarding elliptic curves, taking advantage of how easy it is to obtain such patents and how costly it is for someone to actually challenge it.
 
  • #24
67
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Monsanto has been suing small farmers for years. This story is a good example.

In fact, in Feb. 2005 the Runyons received a letter from Monsanto, citing "an agreement" with the Indiana Department of Agriculture giving it the right to come on their land and test for seed contamination.

Only one problem: The Indiana Department of Agriculture didn't exist until two months after that letter was sent. What does that say to you?
It says to me that Monsanto didn't realize that their lobbyists were late getting to Indiana.



The Runyons charge bio-tech giant Monsanto sent investigators to their home unannounced, demanded years of farming records, and later threatened to sue them for patent infringement. The Runyons say an anonymous tip led Monsanto to suspect that genetically modified soybeans were growing on their property.

"I wasn't using their products, but yet they were pounding on my door demanding information, demanding records," Dave said. "It was just plain harassment is what they were doing."
"Pollination occurs, wind drift occurs. There's just no way to keep their products from landing in our fields," David said.
the company, which won't comment on specific cases, has stopped its legal action against the Runyons.
And now four states, including Indiana, prohibit seed suppliers from entering a farmer's property without a state agent, tactics which have threatened a way of life

http://www.cbsnews.com/stories/2008/04/26/eveningnews/main4048288.shtml
 
  • #25
SixNein
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I just want to echo this. People may think you're joking or exaggerating. Let me describe a real example.

Suppose you want to tell your friend a particular point on the unit circle. You might specify it's (x,y) coordinates. But if you're lazy, you might specify just the x coordinate, and whether you mean for the positive or the negative corresponding value for y.

Innocent enough, right?

If you do the same thing for the curve defined by the equation y2 = x3 - x, then to the best of my knowledge, you've just violated one of Certicom's patents.

As far as I know, Certicom was a corporation whose sole purpose in existing was to file for frivolous patents regarding elliptic curves, taking advantage of how easy it is to obtain such patents and how costly it is for someone to actually challenge it.
Yea, I wasn't joking in the least little bit.

If you try to build a software company, you'll eventually meet the patent mob. They come by your place of business and go "Hey, nice place. It would be shame if it burned down."
 

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