Dismiss Notice
Join Physics Forums Today!
The friendliest, high quality science and math community on the planet! Everyone who loves science is here!

News U.S. Supreme Court Hears Monsanto Seed Patent Case

  1. Apr 18, 2013 #1
    http://www.huffingtonpost.com/2013/02/19/us-supreme-court-monsanto_n_2719335.html [Broken]

    Bowman v. Monsanto Co.

    High Plains Drifting: Wind-Blown Seeds and the Intellectual Property Implications of the GMO Revolution (written by my sister!)

    This has been a hot case. What do you guys think?
    Last edited: May 6, 2017
  2. jcsd
  3. Apr 18, 2013 #2
    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.


    We had a thread on the case last fall.

  4. Apr 18, 2013 #3


    User Avatar
    Gold Member

    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.
    I'm not a lawyer......
    Last edited by a moderator: May 6, 2017
  5. Apr 18, 2013 #4


    User Avatar
    Science Advisor

    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.
  6. Apr 18, 2013 #5
    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.

  7. Apr 18, 2013 #6
    Would it be even faintly possible that someone thought that fighting a gross injustice was more important than economic self-interest?
  8. Apr 18, 2013 #7
    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.
  9. Apr 19, 2013 #8

    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.
  10. Apr 19, 2013 #9


    User Avatar

    Staff: Mentor

    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.
    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
    Last edited: Apr 19, 2013
  11. Apr 19, 2013 #10
    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.
  12. Apr 19, 2013 #11


    User Avatar
    Gold Member

    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 wont 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).
  13. Apr 19, 2013 #12


    User Avatar

    Staff: Mentor

    The market is known to contain 90% Monsanto seeds and he actually tested the seeds to make sure they were "roundup ready".
  14. Apr 19, 2013 #13


    User Avatar
    Gold Member

    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.
  15. Apr 19, 2013 #14


    User Avatar

    Staff: Mentor

    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 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).
    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.
  16. Apr 19, 2013 #15


    User Avatar

    Staff: Mentor

    Oh, you're Greg's sister? Nice to meet you!
  17. Apr 19, 2013 #16
    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.
  18. Apr 19, 2013 #17
    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.
  19. Apr 19, 2013 #18
    In case some haven't read it this is Mr. Bowman's defense:

    Bold mine words are clickable in the link.

  20. Apr 19, 2013 #19
    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.

    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.

    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?
    Last edited: Apr 20, 2013
  21. Apr 19, 2013 #20
    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.
  22. Apr 20, 2013 #21


    User Avatar

    Staff: Mentor

    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.
    Last edited: Apr 20, 2013
  23. Apr 20, 2013 #22


    User Avatar

    Staff: Mentor

    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.
    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.
    Me neither, but that's the way it apparently works and it makes sense to me.
    Not my thesis. That's the issue of the case, as discussed in the history in the wiki article I linked.
    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?)
    Based on the fact that he's already lost twice, I disagree.
    But not patenting them.
    For strains that are not patented/in the public domain.
    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.
    Last edited: Apr 20, 2013
  24. Apr 20, 2013 #23

    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.
  25. Apr 20, 2013 #24

    Vanadium 50

    User Avatar
    Staff Emeritus
    Science Advisor
    Education Advisor
    2017 Award

    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 lets 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.
  26. Apr 20, 2013 #25
    By then they'll have developed a new patented seed that is resistant to their new patented insecticide.
Share this great discussion with others via Reddit, Google+, Twitter, or Facebook