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Patented Seeds
rhh writes: "Seeds and plants grown from seeds are now patentable. Yesterday the US Supreme Court ruled that seeds and seed grown plants can be covered by patents. This is a major victory for companies such as DuPont, Monsanto and others that develop new crop varieties. In J.E.M. AG supply, Inc., DBA Farm Advantage, Inc., et al. v. Pioneer Hi-Bred International, Inc. farmers had sued saying that patents drove the price of seed up. A PDF of the Court's opinion can be found here."
AAAAAAAHHHH! I had hoped this woulnd't happen. I just spent hours upon hours of my life writing a 12 page Constitutional Law paper over this very case, for this very reason.
A little background-
in 1930 congress said you could patent asexually reproducing plants with the Plant Patent Act.
In 1978 this was extended to Bacteria with Chakarbarty v. Diamond, Chakarbarty patented bacteria that disolved oil.
In 1970 Congress passes the Plant Variety Protection Act. This allows the patenting of sexually reproducing plants. However, some key provisions- Farmers can replant their seed, and companies have to release GM seed to seed banks for research.
Here is the problem with the JEM case- it allows UTILITY patents, the same as on any invention, on Plants. Not only is this CONTRARY to the PVPA, but it gies companies 17 years of exclusive use. The dangers here- farmers cant replant seed. If you dont understand why this is dangerous, you aren't close enough to your agrarian root. Put down the palmpilot and talk to a farmer.
The courts have overturned congressional intent. With todays "conservative" court this is becoming more of a danger. Some scholors would even go so far as to say that Rhenquist is more judicially active than Warren, just in the opposite political direction. Scary, aint it?
This also has wide ranging Intelecutal Property implications. If you can patent plants, how about code? How about your genetic sequence? Can I patent my genes and sue someone that happens to have a very close sequence? If there's much response to this topic I'll post more indepth. like I said, I've got pages and pages sitting on my computer, and waaaaay too many hours invested in this case.
No one expects the Spanish Inquisition!
This brings to mind somthing I saw on the news quite a while ago. Two farms were directly neighboring eachother, one farm grew geneticly altered designer crops, that were easily identifiable as such by color, Farmer2 grew normal crops. Well, it seems that Farmer1 let seeds (from grown and mature plants) drift/blow/migrate in to Farmer2's field. The company that designed the plants(so to speak) demanded Farmer2 pay royalties to them for using their stock! I don't remember if he had to or not, but now I'm sure he would be required to do so by law. Life spreads, unless they can make these patented seeds unable to reproduce, they will eventualy end up growing anywhere they can, with the property owner paying.
As follows- long, deal with it. Written in the style of me being a deciding judge. Deal with it.
Background
Pioneer Hi-Bred International is the largest producer of seed corn in the world, and as such holds 17 patents for sexually reproducing corn plants. The patents that Pioneer holds have been granted under Section 101 of the Patent and Trademark Act, which governs the patent process for most patentable discoveries. This law, known as a utility patent, is general, allowing the holder to place restrictions on the use of their discoveries. Pioneer Hi-Bred distributed a genetically modified and patented form of corn to J.E.M. Agricultural with the condition that it be used only to produce "'grain and/or forage'". J.E.M. Ag then repackaged and resold the seed corn, in violation of the terms of sale by patent conditions. Pioneer Hi-Bred responded by filing suit for patent infringement.
J.E.M. countered with the claim that the patents granted to Pioneer are invalid. They base this claim on the contention that corn, a sexually reproducing plant, is not subject to patent under 35 USCS 101. This statute states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Sections 102 and 103 exclude any law of nature or living organism from this protection. Justice White explains "The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute [ 101] was enacted to protect." J.E.M claims that since the patents Pioneer holds are inadmissible by federal statue, they are void, and they lack standing to sue.
Court Decisions
The decision in Chakrabarty seemingly prevents any application of the Flook decision limiting the expansion of patent protection. Pioneer argues that the court is to use its ability to interpret law created by Congress in order to grant patent protection for a category not included in any legislative history of patents. Their reasoning is parroted out of Chakrabarty - "It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803)." The respondent would have this court find ambiguity in the application of 101 in order to interpret the statute so as to extend utility patent protection. This cannot be done in all good conscience, as it requires a vast over use of the courts power of legislative review. The abilities granted by the Marbury case are too important to wield as a sword to be used to create a legal fiction convenient to the courts political views.
Further discussion will reveal why the logic presented in Chakrabarty does not hold in this case. Throughout the interpretation of this case it is important to keep in mind the separation of powers. In every case ask- "Is this the domain of the courts or the legislation?" The overwhelming answer is legislation. This court considers the issue only to rectify the damage that has been done in lower courts, and to restore the meaning that Congress spelled out when they passed the legislation pertinent to this case. An examination of that legislation will reveal why this court does not accept the reasoning presented by Pioneer.
Law
There have been a number of efforts to deal with the emerging field of genetic engineering and manipulation in plants as it relates to patent protection. The legislative history has developed slowly, following the development of science to both produce and identify the kinds of living materials that are eligible for protection, and what those protections might be. It has only been recently that the judicial system has overstepped its bounds to decide, by thinly veiled allusions to revered precedent, what Congress must have meant. A close examination shows that Congress has never intended to extend utility patent protection to sexually reproducing plants. No explicit legislative evidence exists to substantiate this position
Until 1930 it was explicitly understood that creations of living plants were inherently excluded from edibility for patents. During that year Congress passed the Plant Patent Act, which incorporated asexually reproducing plants into the precursor of the current U.S. Patent law- title 35. The PPA was a direct modification of the current statue, reducing the requirement for description, but only applying it to asexually reproduced plants that could be reliably reproduced. This direct modification is important when considering the way that future changes were made.
Then next change to patent law came in 1952 when Congress re-enacted the Patent Act. Among the changes was the replacement of the word "art" with "process". This enactment also codified the changes from 1930 into the new section into 101. This change affirmed the belief or Congress that asexually reproducing plants were subject to utility patents. Once again, this was a direct, codified change to the actual patent act as it pertained to plants. The restrictions on identification were loosened to the point that they were met with a color photograph. Besides these kinds of technical changes, the general requirements such as novelty and man-made construction were retained. Plants patented under this act were also protected like other patents. This is most certainly not the case with the PVPA protecting sexually reproduced plants.
The last change occurred in 1970, and dealt with providing protection to sexually reproducing plants. However, Congress approached the protection of plants in the Plant Variety Protection Act differently. The PVPA did not extend utility patents to sexually reproducing plants, but rather provided them protection with some key stipulations- the ability for farmers to keep seed year to year, and the requirement of submitting samples to seed banks. The PVPA was incorporated as a separate statue, not codified as part of Title 35, Section 101. By this difference it is evident that Congress did not consider the PVPA to be directly equivalent to the PPA. This is however, what Pioneer asks, and what the lower courts have ruled. The differences in the statues demand that they not be considered as equals. Therefore, the Chakrabarty ruling, granting utility patents to asexually reproducing plants fails to influence this court that sexually reproducing plants should be treated in the same way.
Chakrabarty asks that the court interpret Congressional meaning in patent law when ambiguity appears. The question of patent protection for plants has been decided on three times in the last 72 years. For an issue of rather fine political and constitutional importance this is an enormous body of legislative action. Congress has systematically applied greater and greater protection to those that develop variations on living matter. Protection for living matter began with the PPA's application to asexually reproduced plants and has most recently been extended to sexually reduced plants by the PVPA. In none of these three actions has Congress granted utility patent protection for sexually reproducing plants.
Instead, they have established an entirely different protection scheme, complete with its own certification process, rights for holders, and rights for the general public and researchers. This must be taken as a clear signal for what protections Congress wished to grant sexually reproducing plants. In light of these decisions it would be a severe usurpation of Congressional power if this court were to decide that Congress had intended to protect sexually reproducing plants with utility patents. However, this is exactly what Pioneer asks for.
Pioneer Hi-Bred cites the fact that the Court of Customs and Patent Appeals has ruled in their favor to grant the patent as judicial precedent for this court to follow. It is important to note that Parker v. Flook was a reversal of a Court of Customs and Patent Appeals decision, and that decision set up the affirmance of an appeal in Diamond v. Chakrabarty. The court holds little precedent judicially as it is primarily an administrative body. This court finds little reason to believe that the Patent Court acted in accordance with the desires exhibited by Congress through the 1970 PVPA.
Natural Law Exemption
The Chakrabarty case only bears a surface resemblance to the case that has been presented here before the court. At issue was a similar topic, whether or not the patent office could grant a utility patent for a living organism, but the granting of that patent relied on a very different premise than is present here. In Chakrabarty the court allowed the patent not solely because of the PPA, but because the patent application clearly met standards already in place and the PPA. At issue was the creation of a "novel" organism. Much like the development of a new machine the bacteria that Chakrabarty patented had properties that no other patented product had. The fact that it reproduced asexually allowed it to be granted a utility patent under the PPA. Pioneer's claims do not meet either requirement. The PPA explicitly grants utility patent protection for asexually reproducing plants only. The PVPA allows a measure of protection for sexually reproducing plants, but not under utility patent law.
As importantly, the patents filed by Pioneer Hi-Bred would not meet legislative requirements even if the PPA applied to sexually reproduced seeds. In the Chakrabarty case, the bacteria did something that no bacteria had ever done through natural mutation- they dissolved oil spills. Pioneer makes no such claim here. Their corn does not clean up toxic waste, revolutionize transportation, or do quantum mechanics. It is simply corn. Granted, the corn has improvements, but the improvements are such that they are simply extensions of natural properties of corn.
In order for an invention to be patented it must "have never occurred in nature." This requirement was part of the original 1793 patent act, and has remained unchanged through all modifications. The reason for this is simple- if patents are granted on natural processes, a single patent could corner an entire area of invention. A patent on convection could greatly affect cooking, incubation, heating, and many industrial processes. Likewise, a discovery from nature belongs to the public in trust, to experiment on, develop from, and create unique products and processes. The accelerated evolution of a sexually reproducing plant to exaggerate natural traits does not meet this criteria. Once again, the case presented by Pioneer fails to meet any test set up by either the Supreme Court of the Congress.
Without a definitive man made modification there are several recourses that Pioneer may pursue. They may obtain utility patents on a manner for the actual process of modifying corn, or raising the seed once it has been produced. However, they may not obtain a utility patent on the corn itself. Therefore, they must find alternative methods for protecting the integrity and rights to the specific breeds of corn that they produce.
Restrictions versus Alternative Methods
At the center of this debate is the question of whether the presence of the PVAP and the PPA exclude the possibility of utility patent protection. The lower courts found compelling evidence that the Radzanower test had been met. When two statutes cover the same ground, if they are found to be capable of co-existing, the court is to hold both as effective. However, this court finds that the lower court was mistaken in one area- the PVPA and the application of utility patents to plants are not capable of coexisting. This is not because the letter of the law is mutually exclusive, but because the PVPA makes clear what protection that Congress wished to extend to plants.
When Pioneer applied for a utility patent to protect their corn derivatives, they also applied for protection under the PVPA. There has been much debate about the legitimacy of doing this. The question presented is whether or not the PVPA is the sole means of protection for sexually reproducing plants. This court contends that the history surrounding the creation of the PVPA makes it the sole protection for sexually reproducing plants, and that the utility patents law cannot be construed to encompass additional protection outside the PVPA.
The legislative history shows ample cause for rejecting this argument. In 1930 the PPA was created as a direct change to the Patent Act, and included in the 1952 re-codification. This provides evidence to suggest that Congress intended the PPA to extend the utility patents in a new direction- the ability to patent asexually reproducing organisms. Under this specific setup, the protection from both clauses is effective and capable of coexisting. Not only are they complimentary legally, but also in the reason and form of their creation. The Radzanower test has been met since both can co-exist, and so it is the courts ruling that a patent may be held under utility patents as well as the PPA, because they are in fact, one and the same. This is not the case with the PVPA.
The PVPA was enacted in 1970 not as an extension, amendment, or re-enactment of the Patent Act, but rather a separate statute. Whereas the PPA relaxed the restrictions on utility patents in order to protect asexually reproduced plants, the PVPA gave entirely different protection, outside the scope of utility patents. This difference is important to consider when reasoning the kinds of protection that Congress intended. The PVPA and utility patents do not conflict in their statutory language. Both offer rights to those seeking a patent on plant material, and the rights do not conflict. However, they fail the Radzanower test for co-existence when the philosophy of each is considered. Utility Patents are granted to discovers of man-made processes, methods, and objects. The case that the respondent relies so heavily on, Diamond v. Chakrabarty (1980), is a prime example of the differences in sexually and asexually reproduced organisms in the eyes of Congress, as relating to patents.
Other Considerations
This court has been presented with a unique and delicate opportunity in deciding this case. With the current development of intellectual property laws much more is at stake than the declaration of this one case, or even the disposition of patents in the agricultural world. A dangerous precedent would be set if the judicial system, either federal courts or the United States patent court, were allowed to expand or contract patent requirements and benefits, a subject constitutionally delegated to Congress.
The constitution specifically delegates to Congress the power to "promote the useful arts and sciences" through the granting of patents. This clause holds two very important Constitutional considerations. The first is an issue of separation of powers, and the second is a question of how to best promote the public good. Because of the importance of intellectual property in today's world, a cautious line must be taken. If this court were to begin the business of establishing patent law it would have an extremely negative impact on the effectiveness and fairness of the patent process, as well as undermine the legitimate power of the court.
Therefore, we must leave the power of establishing patent law with those to whom the founders granted it- the Congress. Through the establishment of the PVPA and PPA the Congress has made its intention known. The granting of utility patents to asexually reproducing plants under the PPA is legitimate, but the differences in the establishment of the PVPA make it clear that those same protections do not apply. Instead, Congressional intent was to limit the kinds of protections available. Not only this, but the PVPA carries some key responsibilities for those applying, and rights for the purchasers of seed that are not present in utility patents. If Congress has seen fit to make these conditions part of the protection process for sexually reproducing plants the court has no right or power to overrule them.
If the court were to rule in favor of Pioneer Hi-Bred we would be creating protection where none exists. Pioneer has sought a shortcut to legislation by redress from the court system. A ruling in their favor would substantially change Congressional legislation in such a way as to give seed companies the right to hide their modifications of plants from all other researchers, and deny farmers rights which they retain under the PVPA. More specifically, the nation's farmers would no longer be allowed to keep seed from one year to the next. This not only has the potential to destabilize American agriculture, but is also contrary to Congressional intent.
Intellectual property is an especially sensitive issue. The power to patent is the power to modify the entire development of an industry. Some analysts have suggested that the permissive licensing of patents from IBM is responsible for the growth of the home computer market toward the PC and away from Apple. Such is the power in patents. If the courts are allowed to modify patent law at a judicial or administrative level, rather than a legislative level, the effects on development could be staggering. Patents on seeds could drive some farmers out of business with burdensome seed prices and damage the economy, or they could promote one seed company so heavily over another that the power of patents would allow a monopoly to form. In either even, those who wish to research modified corn deserve the protection of the PVPA so that better strains of corn may be developed. Congress has decided that seed banks are the best way to promote the useful arts and sciences, and that is their constitutional duty.
Conclusion
This court cannot stand idly by while other judicial bodies assume legislative functions. While the constitution has granted the courts powers to interpret laws, they cannot create laws where none existed, or wipe out existing laws. By ruling that Pioneer Hi-Bred could patent corn, that is what the Court of Customs and Patent Appeals has done.
This is a dangerous precedent to let stand. Not only does it corrupt the original intent of the law, but also denies farmers and researchers the rights that Congress has seen fit to protect. Repeated abuse of these judicial powers to create laws is extraordinarily detrimental to the justice system as well. If patent law decisions were made by the courts instead of Congress it would begin a slippery slope that stands in direct conflict with our constitution, and the principles of representative democracy.
The court sees this case as a place to draw a line in the sand. The responsibility and right of Congress to regulate the granting of patents has systematically been stretched by court decisions that opened new areas of patent protection. It is, however, very clear that Congressional intent cannot be stretched to include the granting of utility patents to sexually reproducing plants.
This court finds that the extension of utility patents to those products of nature which are not specifically enumerated in USCS Title 35 have not been granted protection by Congress. Therefore, the appellate ruling in J.E.M. Agricultural v. Pioneer Hi-Bred is overturned.
No one expects the Spanish Inquisition!
Will he be sued for selling the crop?
Yes he will indeed be sued. It's happening right now. See this link: http://www.percyschmeiser.com/
And this one: http://nelsonfarm.net/
If you're a zombie and you know it, bite your friend!