U.S. Supreme Court Hears Monsanto Seed Patent Case

[Greg Bernhardt]

WASHINGTON -- The Supreme Court appeared likely Tuesday to side with Monsanto Co. in its claim that an Indiana farmer violated the company's patents on soybean seeds that are resistant to its weed-killer.

None of the justices in arguments at the high court seemed ready to endorse farmer Vernon Hugh Bowman's argument that cheap soybeans he bought from a grain elevator are not covered by the Monsanto patents, even though most of them also were genetically modified to resist the company's Roundup herbicide.

http://www.huffingtonpost.com/2013/02/19/us-supreme-court-monsanto_n_2719335.html

Bowman v. Monsanto Co.
http://www.scotusblog.com/case-files/cases/bowman-v-monsanto-co/

High Plains Drifting: Wind-Blown Seeds and the Intellectual Property Implications of the GMO Revolution (written by my sister!)
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1036&context=njtipThis has been a hot case. What do you guys think?

 

[edward]

Monsanto needs to win this because they have other similar patented products coming out as old patents expire.

Why the farmer would pursue this all the way to the Supreme Court is a bit puzzling. The original judgement against him was for less than $90,000. He must have spent a lot more than that in legal fees to get it to the Supreme Court.

Things get a bit more dicey in the field of medicine where someone wants to patent a human gene.

http://www.nytimes.com/2013/04/16/business/justices-tackle-the-patenting-of-human-genes.html?_r=0

We had a thread on the case last fall.

https://www.physicsforums.com/showthread.php?t=649363&highlight=Monsanto

 

[OmCheeto]

http://www.huffingtonpost.com/2013/02/19/us-supreme-court-monsanto_n_2719335.html

Bowman v. Monsanto Co.
http://www.scotusblog.com/case-files/cases/bowman-v-monsanto-co/

High Plains Drifting: Wind-Blown Seeds and the Intellectual Property Implications of the GMO Revolution (written by my sister!)
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1036&context=njtip

2005? That's like a lifetime ago.

I will read your sister's paper in 407 days. Until then, I will contemplate other odd things.

This has been a hot case. What do you guys think?

I'm not a lawyer...

 

[chiro]

The practice of being able to patent biological products of any kind (which include seeds) should have been stamped out a very long time ago.

It is a very dangerous precedent and it used to be banned (and it was done for a good reason).

The next step that will be justified will be patenting biological attributes of the genes of animal and later human parts and it means that ownership issues will essentially enslave people to patents and IP law.

People may argue that I'm going "too far" in my comment, but just remember that the idea of patenting "seeds" not so long ago was considered off limits and now companies are looking at things like GMO Salmon: so just remember this when you consider the future of commerce and ownership in these dangerous times.

 

[edward]

I think if a plant is growing on my property and pollen from a patented plant some distance away cross pollinates it, that is just tough luck for Monsanto. They knew their GM plants would cross pollinate.

Overall my biggest problem with GM plants is that their popularity brings about a lack of diversity in seeds. Shades of the Irish potato famine.

Lack of genetic variation in Irish potatoes contributed to the severity of the Irish potato famine, which devastated Ireland's population and economy. Today, evolutionary theory tells us that relying on crops with low genetic variation can lead to disaster. Heeding the warnings of scientists and history may help us prevent wide-scale crop devastation due to changing environmental conditions.

http://evolution.berkeley.edu/evolibrary/article/agriculture_02

 

[ImaLooser]

Monsanto needs to win this because they have other similar patented products coming out as old patents expire.

Why the farmer would pursue this all the way to the Supreme Court is a bit puzzling. The original judgement against him was for less than $90,000. He must have spent a lot more than that in legal fees to get it to the Supreme Court.

Would it be even faintly possible that someone thought that fighting a gross injustice was more important than economic self-interest?

 

[edward]

Would it be even faintly possible that someone thought that fighting a gross injustice was more important than economic self-interest?

Definitely, but most farmers don't have a big enough of a bank roll to go all the way to the Supreme Court. Hopefully he is getting some help from other farmers who were sued by Monsanto.

 

[aquitaine]

I think if a plant is growing on my property and pollen from a patented plant some distance away cross pollinates it, that is just tough luck for Monsanto. They knew their GM plants would cross pollinate.

Overall my biggest problem with GM plants is that their popularity brings about a lack of diversity in seeds. Shades of the Irish potato famine.



http://evolution.berkeley.edu/evolibrary/article/agriculture_02

Pre-GM agriculture has been like this for decades, if anything genetic modification ameliorates this by allowing fairly rapid adaptation. As a stopgap there's still conventional chemical treatments if that is needed.

 

[russ_watters]

I think if a plant is growing on my property and pollen from a patented plant some distance away cross pollinates it, that is just tough luck for Monsanto. They knew their GM plants would cross pollinate.

That's not what this case is about (Greg just linked that other story because his sister wrote about it). This case is about a farmer who knowingly bought and planted seeds he wasn't allowed to plant (some of which were seeds he had previously sold!) for years. Seems like an open and shut case.

Would it be even faintly possible that someone thought that fighting a gross injustice was more important than economic self-interest?

Perhaps, but seeing as how he apparently knew what he was doing was illegal, he would appear to have a poorly calibrated ethical compass to begin with.

[edit] The wiki does kind of imply this was a setup, as he informed Monsanto of his actions. http://en.wikipedia.org/wiki/Monsanto#Other_legal_actions_in_North_America

 

[Jack21222]

That's not what this case is about (Greg just linked that other story because his sister wrote about it). This case is about a farmer who knowingly bought and planted seeds he wasn't allowed to plant

I don't know that this is all that clear. The seeds were not Monsanto brand seeds. They were just random seeds from the open market. Commodity seeds. He was just smart enough to know that the Monsanto gene was so prevalent, that any random seed would probably have the gene.

Please tell me if I have anything factually wrong there.

 

[berned_you]

I don't know that this is all that clear. The seeds were not Monsanto brand seeds. They were just random seeds from the open market. Commodity seeds. He was just smart enough to know that the Monsanto gene was so prevalent, that any random seed would probably have the gene.

Please tell me if I have anything factually wrong there.

The patented/licensed seeds were intermixed with regular seeds. It was a crapshoot what you got and the "leftover" seed mix of this type was mostly used for animal feed so I suppose most people didn't care. He grew the seeds and continued to cultivate the plants that came at least partially from patented seed.

The real issue of this case is whether or not you can be held to patent license terms for seed that you did not agree to. The seed was sold in the secondary market in ways allowed by the license. There's also the first sale doctrine which generally states that once you sell a patented product, no subsequent uses or sales of that product are infringing. In this case, there is the potential argument that you are "making" the patented product for the first time and there are also arguments that you have an implied license to continue to use the patented seed because that's inherently what the patented product does, it produces more seed. Of course Monsanto's army of lawyers will argue which way they want the case to go and to pick and choose which cases they want to make statements with. I don't think Monsanto really has any concern over this case. Word is they are pretty close to making seeds that produce plants that won't create more seeds so everyone will be stuck buying seed year after year, which is already required by the license of the seed but then it will be more than contractually obligated.

Please note that this decision will have no bearing on whether or not you can patent self-replicating technologies or claim ownership rights in the "children" of self-replicating technologies (which can also extend to viruses and other biological sciences).

 

[russ_watters]

I don't know that this is all that clear.

Please tell me if I have anything factually wrong there.

The market is known to contain 90% Monsanto seeds and he actually tested the seeds to make sure they were "roundup ready".

 

[berned_you]

I will also note that intent to infringe or even taking advantage of the patented seed's benefits has no bearing on whether you infringe under the law. The only exception may be with respect to a calculation of damages. I think this is somewhat problematic when it comes to self-replicating technologies. That's what my paper discusses (see original post). Yes it is from 2005 but I'm not aware of any substantial case or law development since then. Farmers do not have the resources to challenge Monsanto and Monsanto practically owns the US Dept of Agriculture. Again, see article for full discussion of the issues.

 

[russ_watters]

The real issue of this case is whether or not you can be held to patent license terms for seed that you did not agree to.

No, that really isn't any question at all. That people who are in a certain country are bound to adhere by its laws just by virtue of being there is a foundational principle of government ruled by law, regardless of if you ever stated you accepted the laws.

The seed was sold in the secondary market in ways allowed by the license.

Yes.

There's also the first sale doctrine which generally states that once you sell a patented product, no subsequent uses or sales of that product are infringing.

The seed is not the first sale patented product, the seed is a copy of the patented product. That the law allows the seeds to be sold at all is a relaxation of how patent law would normally impact products (you would not normally be allowed to sell a copy of a patented product).

...there are also arguments that you have an implied license to continue to use the patented seed because that's inherently what the patented product does, it produces more seed.

That's also already been decided.

This case is so clear-cut, it confuses me as to why the farmer would continue. Even if he sees himself as some sort of anti-Monsanto crusader, he should have enough self-awareness to know that a loss in the USSC hurts him more than just dropping the case.

 

[russ_watters]

That's what my paper discusses (see original post).

Oh, you're Greg's sister? Nice to meet you!

 

[aquitaine]

This case is so clear-cut, it confuses me as to why the farmer would continue. Even if he sees himself as some sort of anti-Monsanto crusader, he should have enough self-awareness to know that a loss in the USSC hurts him more than just dropping the case.

Because he knows the anti-GMO movement is pretty much a religion, so if he can make himself into a martyr For the Cause he can become something of a mini-celebrity. That's pretty much what Schmeiser did in another clear cut case of patent infringement, and to this day people still believe he was railroaded.

 

[Jack21222]

The market is known to contain 90% Monsanto seeds and he actually tested the seeds to make sure they were "roundup ready".

So at what percentage of the market does it become okay to plant commodity seeds? If 80% of the seeds were roundup ready, would it have been okay? 50%? 25%?

What if only 5% were roundup ready? If he planted 10,000 seeds, it's an almost statistical certainty that he planted at least one roundup ready seed. So, if 5% of the commodity seeds were roundup ready, is he allowed to plant them?

I bet Monsanto would argue that nobody can plant commodity seeds if there is a possibility that they may contain roundup ready seeds, even if it's a small percentage. That's a little scary to me.

 

[edward]

In case some haven't read it this is Mr. Bowman's defense:

Mr. Bowman’s main defense is patent exhaustion — the concept that once a patented object is sold, the patent holder loses control over how it is used.

The Supreme Court affirmed this principle most recently in a 2008 case involving Intel computer chips containing patented technology licensed from LG Electronics. The court ruled that once Intel sold the chips to computer manufacturers, LG’s rights were exhausted and LG could not control how the manufacturers used the chips in their machines.

In the seed case, Mr. Bowman argues, Monsanto had no more rights on the beans sold to the grain elevator.

Bold mine words are clickable in the link.

http://www.nytimes.com/2013/02/16/b...nto-seed-patent-case.html?pagewanted=all&_r=0

 

[ImaLooser]

No, that really isn't any question at all. That people who are in a certain country are bound to adhere by its laws just by virtue of being there is a foundational principle of government ruled by law, regardless of if you ever stated you accepted the laws.

Mahatma Gandhi and Nelson Mandela would not agree with you. In a more moderate vein it is common to provoke a test case to challenge a law, such as the famous Scopes trial. The judicial branch can strike down a low only if there is a trial.

Yes. The seed is not the first sale patented product, the seed is a copy of the patented product.

I have never, ever before heard a seed, plant, bacterium, fungus, or any other living being referred to as a "copy." I would say that this a most novel use of the word and precedent is entirely against your thesis.

That the law allows the seeds to be sold at all is a relaxation of how patent law would normally impact products (you would not normally be allowed to sell a copy of a patented product). That's also already been decided.

This case is so clear-cut, it confuses me as to why the farmer would continue. Even if he sees himself as some sort of anti-Monsanto crusader, he should have enough self-awareness to know that a loss in the USSC hurts him more than just dropping the case.

I think he has a good case. The situation is quite ambiguous. First of all, realize that farmers have been genetically modifying their stock and crops from the beginning of time. The entire reason that a breed or strain is valuable is that it is genetically different from "wild type." A farmer buys a certain strain and is free to reproduce it. So there is a very strong precedent.

Monsanto's case is that millennia of precedent be overturned. Why?

 

[ImaLooser]

So at what percentage of the market does it become okay to plant commodity seeds? If 80% of the seeds were roundup ready, would it have been okay? 50%? 25%?

What if only 5% were roundup ready? If he planted 10,000 seeds, it's an almost statistical certainty that he planted at least one roundup ready seed. So, if 5% of the commodity seeds were roundup ready, is he allowed to plant them?

I bet Monsanto would argue that nobody can plant commodity seeds if there is a possibility that they may contain roundup ready seeds, even if it's a small percentage. That's a little scary to me.

Quite so. The legal issues aside, this vague line seems like a nightmare. No way this sort of thing should be resolved on a case-by-case basis, so particulars of this case are of no significance.

 

[russ_watters]

So at what percentage of the market does it become okay to plant commodity seeds? If 80% of the seeds were roundup ready, would it have been okay? 50%? 25%?

I bet Monsanto would argue that nobody can plant commodity seeds if there is a possibility that they may contain roundup ready seeds, even if it's a small percentage. That's a little scary to me.

I think they may argue just that and I think it is a legitimate position to take.

Although since the farmer tested the seeds to make sure they were "roundup ready", it is probably moot anyway.

What annoys me about these cases is that people act like the farmers are being taken advantage of/exploited. They aren't. Monsanto charges money for their seeds and farmers buy them because they enable farmers to make more money! What this farmer did is like stealing gas from a gas station and then complaining (and having others do it for him!) that they shouldn't be charging money for something they pumped out of the ground.

 

[russ_watters]

Mahatma Gandhi and Nelson Mandela would not agree with you.

I'm quite certain they were aware they were breaking the laws of their country, but I don't see what relevance that has. Are you comparing this farmer to them? Are you saying he thinks he's like them?

This isn't a revolution, it is a supreme court case.

In a more moderate vein it is common to provoke a test case to challenge a law, such as the famous Scopes trial. The judicial branch can strike down a low only if there is a trial.

Yes, but that's kinda my point. There is risk that he won't get the answer he's hoping for - and based on the history of the case and the law, I think that's likely. That's why I think it shows a lack of self-awareness on his part.

aquatane may be right, but I've never really believed in the idea of martyrdom.

I have never, ever before heard a seed, plant, bacterium, fungus, or any other living being referred to as a "copy."

Me neither, but that's the way it apparently works and it makes sense to me.

I would say that this a most novel use of the word and precedent is entirely against your thesis.

Not my thesis. That's the issue of the case, as discussed in the history in the wiki article I linked.

In 2009 the district court ruled in favor of Monsanto; on appeal, the Federal Circuit upheld the verdict.[142] Bowman has appealed to the United States Supreme Court, which accepted the case on October 5, 2012.[144] If the Supreme Court reverses the judgement, it would also affect other self-replicating technologies (such as DNA and cell lines) used by the biotechnology industry; patent infringement could potentially be avoided by growing or otherwise duplicating the patented articles.[145]

It sounds perfectly reasonable to me: you can't make a copy of a patented product and use it. Why should it matter if the copy you are using made itself? (Important caveat: in this case, the patented product doesn't really copy itself, now, does it?)

I think he has a good case.

Based on the fact that he's already lost twice, I disagree.

The situation is quite ambiguous. First of all, realize that farmers have been genetically modifying their stock and crops from the beginning of time.

But not patenting them.

The entire reason that a breed or strain is valuable is that it is genetically different from "wild type." A farmer buys a certain strain and is free to reproduce it. So there is a very strong precedent.

For strains that are not patented/in the public domain.

Monsanto's case is that millennia of precedent be overturned. Why?

No, Monsanto's case is that normal patent protection applies. The courts have so far agreed.

I think this case is a pretty easy/obvious one. What's going to be more interesting to me is when the patents run out, what Monasnto does to try to get them extended and/or how the marketplace changes after the seeds become part of the public domain. That's something I think people overlook here but shouldn't: patent protection is temporary and someday relatively soon, Monsanto is no longer going to have patent protection.

 

[aquitaine]

Mahatma Gandhi and Nelson Mandela would not agree with you. In a more moderate vein it is common to provoke a test case to challenge a law, such as the famous Scopes trial. The judicial branch can strike down a low only if there is a trial.

The martyrdom has already started. I somehow think it's a bit absurd to compare a case of patent infringement to bringing independence to India and ending the truly horrific Apartheid regime.

 

[Vanadium 50]

Some hypotheticals that might be interesting to consider. Think about a somewhat more sophisticated version of today's 3D printer.

1. I buy one of these (patented) 3D-printers, and use it to make mousetraps (unpatented) that I sell.
2. I buy one of these (patented) 3D-printers, and use it to make mousetraps (some else's patent) that I sell.

So far, I think everyone will agree that 1 is OK, and 2 is patent violation.

3. I buy one of these (patented) 3D-printers, and use it to make more 3D printers, and I then use those 3D printers to make more unpatented moustraps to sell.
4. I buy one of these (patented) 3D-printers, and use it to make more 3D printers, which I then sell with a license from the patent holder.
5. I buy one of these (patented) 3D-printers, and use it to make more 3D printers, which I then sell without a license from the patent holder.

It's trickier here, but I would argue that 3 and 5 are illegal, but 4 is not.

6. A third party is conducting licensed business under scenario 4. They have a fire sale of many 3D printers, some of which are as described above, and some of which are lesser models that cannot reproduce themselves. The whole lot is bought, the ones that are incapable of self-reproduction are thrown away, and the remainder used to make copies of themselves, for future use under scenario 3 or 5 - i.e. without a license from the patent holder.

I think this let's us separate the issue between mechanical and biological reproduction, and the issue of how stringent a patent can be on a machine that builds other machines.

 

[Greg Bernhardt]

That's something I think people overlook here but shouldn't: patent protection is temporary and someday relatively soon, Monsanto is no longer going to have patent protection.

By then they'll have developed a new patented seed that is resistant to their new patented insecticide.

 

[OmCheeto]

...
I will read your sister's paper in 407 days. ...

Ok, I lied. But I was not under oath...

I have read 1/2 so far, and this is the only thing I understood.

Despite a finding of infringement, the Supreme Court found Schmeiser did not benefit from the Roundup Ready® gene because he did not use Roundup® on his crops, thus made no more profit than he would have if he did not use the patented seeds.63 The Supreme Court, therefore, ruled that Monsanto was not entitled to damages.64

Yay!

I'm not a lawyer...

As a lay scientist, it's difficult for me to comprehend "It is the opinion of the court" type things. I like facts and figures, and pretty graphs.

And you know what they say about opinions; "Opinions are like ayyyeeeee, um, ... about about a dime a dozen..."

--------------------------
ps. Greg, I'm getting ready to file some patents. Does your sister know of any good patent lawyers? I talked to a gentleman at work who said he'd been screwed out of his royalties(~$5e5) by his partner, and he recommended that I spend no less than $10k per patent. Unfortunately, I don't have $10k. But according to someone I spoke with on Thursday, I should net around $5e9 from my first patent. Are there patent lawyers who would be willing to work for a 10% contingency fee?
Ok to delete, infract, and/or ban, based on PF rules of solicitation...
"Soliciting: Soliciting or offering financial payment for any reason is strictly prohibited."

 

[aquitaine]

By then they'll have developed a new patented seed that is resistant to their new patented insecticide.

The patent on Roundup has already expired. When their patent on Roundup Ready genes expires the market will be flooded with generic versions of that as well. In theory this would force their next patented herbicide to be much better in some way. In the meantime the rest of us will be free to produce as much Roundup Ready crops as we want without regard to patent issues. By the way, when does their patent on Roundup Ready expire?

 

[Greg Bernhardt]

In the meantime the rest of us will be free to produce as much Roundup Ready crops as we want without regard to patent issues.

Unless Roundup Ready becomes no longer effective due to pest adaptation. I'm sure that is Monsanto's hope, to always lock farmers in.

 

[OmCheeto]

Not sure if this should go here, or in Random Thoughts, but I'll try here first.

Went out to the yard, after my previous post, and started weeding. I thought about this thread, and the implications. One thought was; "What if the creators of "Dr. Neutrino" had patented the idea of a science forum, where people simply answered other peoples science questions." I laughed, as I would not soon be posting this, if that had been the case.

My thumbed cat watched me, from the top of my boat, as I was weeding, and I wondered what would happen if I patented "thumbed cats". Would all thumbed cats in the world be my invention? Could I sue people for having cats with thumbs, and be reimbursed? I scratched his head, and he purred.

 

[edward]

The patent on Roundup has already expired. When their patent on Roundup Ready genes expires the market will be flooded with generic versions of that as well. In theory this would force their next patented herbicide to be much better in some way. In the meantime the rest of us will be free to produce as much Roundup Ready crops as we want without regard to patent issues. By the way, when does their patent on Roundup Ready expire?

The patent has expired and the patent on the roundup ready seed expires in 2014. The big irony here is that the extensive use of roundup has resulted in roundup resistant weeds. Monsanto and Bayer plus possibly others have new GM products ready.

Just as the heavy use of antibiotics contributed to the rise of drug-resistant supergerms, American farmers’ near-ubiquitous use of the weedkiller Roundup has led to the rapid growth of tenacious new superweeds.

To fight them, Mr. Anderson and farmers throughout the East, Midwest and South are being forced to spray fields with more toxic herbicides, pull weeds by hand and return to more labor-intensive methods like regular plowing.

http://www.nytimes.com/2010/05/04/business/energy-environment/04weed.html?pagewanted=all