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The Supreme Court To Rule On Monsanto Seed Patents
Fluffeh writes "Can a farmer commit patent infringement just by planting soybeans he bought on the open market? This week, the Supreme Court asked the Obama administration to weigh in on the question. The Court is pondering an appeals court decision saying that such planting can, in fact, infringe patents. Last year, the United States Court of Appeals for the Federal Circuit ruled, as it had on several previous occasions, that patent exhaustion did not cover second-generation seeds. The Supreme Court has now asked the Solicitor General, the official in charge of representing the Obama administration before the Court, to weigh in on the case."
Monsanto is about to realize a dream: The absolute ownership of the food supply.
http://www.rootstrikers.org/
It's possible that this could be the concrete example of the brokenness of the patent system required to instigate reform. In this case, outlawing this type of genetic patent.
From TFA:
Monsanto has a point. Taking Bowman's argument to its logical conclusion would imply that anyone could buy a single batch of commodity (but still Roundup Ready) soybeans and use it to sell an unlimited number of copies. This would effectively eviscerate Monsanto's patent protection.
Yet Monsanto's position—that planting Monsanto-derived soybeans always requires Monsanto's permission—could also have troubling consequences. In a world where 94 percent of soybeans in circulation are descended from Monsanto's genetically engineered seeds, it might be hard for farmers who didn't want Monsanto's seeds even to buy seeds that were not patent encumbered. Monsanto's position would effectively place the burden on farmers to test seeds they hope to plant in order to ensure they are not covered by any patents.
If the product works as advertised then natural selection will ensure it comes to dominate the population.. how can you litigate against evolution? Surely the only winning move here is not to play?
If you funded the invention of a new crop version and wanted to recoup your hundreds of millions of development costs, you would not want the court to eliminate patent rights for 2nd generation crops.
If on the other hand, you are a farmer, and nearly all beans in your area are patented and then you buying commodity beans from a "feed and seed" place & it means you get mostly patented beans and you plant them, you would not expect to pay a royalty on a "commodity" that you didn't want or order.
This is a tough one. I see the issues on one side and the other.
I see it more that the farmer should sue Monsanto for contaminating the seeds he buys - he expects to get regualr bean seeds instead through no fault of his own, the seeds have been contaminated with genetically modified components.
Ruling that any farmer got it (contaminated agriculture) through natural processes as "infringing" is ludicrous.
"Enjoy what you're doing! If it becomes drudgery, you're doing it wrong!" - Jim Butterfield
There are a lot of fantastical views about the role of the Supreme Court and ones personal interpretation of the Constitution, but as it stands, the SCOTUS is a purely reactive branch. It's not their job to make policy, nor should it be.
Even with the recent Affordable Care Act oral arguments, you heard Supreme Court justices voicing their reluctance to wade through the bill to figure out where to sever the individual mandate. The court was not consulted on the constitutionality of the PATRIOT act or the most recent NDAA before they were passed. Someone has to actively sue (and have standing to sue, under federal law,) to even bring it to their attention. This might not be ideal, since it would be very difficult sue the federal government over indefinite detention while having the standing to do so, but it's how our government works.
On this issue, it makes sense. The SCOTUS is merely asking the other branches of government "hey, there's a problem with your law. How would you solve it?" before writing a precedent-setting decision.
Not going to hope for much here, seeing as Monsanto already owns the government.
I'm looking forward to a day when living things cannot be patented - especially things which can self-proliferate in a natural setting. I might need to go to another planet to achieve this, unfortunately.
SCOTUS has taken the unusual step of asking the administration to provide them with an interpretation. This does not necessarily mean SCOTUS will hear the case; they can still reject the petition.
To be more precise, this move indicates that the court has a strong interest in the case. It's still possible that they'll let the circuit decisions stand, if they basically agree with everything they can get their hands on.
That said, I really hope they hear it, and separate patents from seeds. Fuck you for this case, Monsanto.
The Supreme Court recently invalidated patents on natural things. All Monsanto has done so far, is move various natural genes around, from one life-form to another. That is, there are no synthetic genes in the seeds that were patented. I'm aware that the result is new in the sense that the combination didn't exist before, but no part of it is actually new.
Since I'm quite aware that new combinations of other things are quite often patentable, I won't say that gene-manipulated seeds don't automatically deserve to be patented. But it might be reasonable to limit the scope of the patent. Because, historically, most patented things need to be manufactured to exist in quantity; they don't go out and automatically make copies of themselves as seeds can do.
So, my opinion on this matter is that the patents should not be allowed to cover any "copies" of the seed-genes that Naturally "get away" from Monsanto's (and most any other industry's) normal control-of-supply. If Monsanto can lock down cross-pollination of its patented gene combinations, fine (and good luck!). If Monsanto can produce seeds that grow plants that produce nonviable seeds, fine (also, good luck!). Because either of those would be reasonable ways to keep its patented gene-combinations under control. But trying to claim ownership of the results of perfectly Natural gene-spreading processes, NO.
The courts have painted themselves into this ridiculous corner based on idiotic interpretations of the Constitution. In ascribing to the letter of the law they have completely disregarded the spirit of the law, and in so doing allowed this stupid situation to exist. The fact that patents are granted on a ~20-year duration regardless of field allows companies like Monsanto to lock down the food supply in perpetuity. By contaminating the soybean supply every few years with a new slight derivative, and claiming infringement on natural cross-contamination, they can effectively undercut the patent system and extend their monopoly forever.
Now what do the courts do - they flail about asking other branches for ideas. Seriously? This is the type of gov't / corporation complicity that the 99%ers complain about, and if there is ever another revolution in this country it will be based on stupid crap like this.
As I understand it, the issue with the replanted/cleaned seeds is a matter of intentional breach of contract rather than one of patent infringement. When you purchase their seeds, you purchase a license with them that prohibits the replanting/cleaning of the seeds. So whether or not IP was infringed is essentially irrelevant to the stipulations of the contract itself.
Monsanto discusses the topic on their FAQ concerning Food Inc. http://www.monsanto.com/food-inc/Pages/default.aspx
There's also a practical reason behind preventing the cleaning and replanting of seed. Since these seeds contain a pesticide (Bt derivative), a necessary step to maintaining the efficacy of the pesticide is planting a refuge (non-GM section) as part of the crop. If the whole crop expressed the pesticide genes, we could expect resistance to develop very quickly, but by adding in refuge areas the selective pressure decreases. The size of the refuge varies depending on the mix of proteins being expressed, and is determined by the EPA. These non-GM refuge seeds are sometimes mixed in with the GM ones at specific ratios. By cleaning/replanting the seeds, the ratio of GM to non-GM seeds changes, and the size of the refuge is no longer controlled. This creates a situation similar to the over-prescription of antibiotics that we're all familiar with; resistant pest strains will appear much more frequently. So there are reasons other than simple greed behind these contracts.
Disclaimer: I'm currently employed at Monsanto, but contracted through a third party. I am not authorized to speak on behalf of the company, and my comments should not be interpreted as such.
"Operating systems suck: you're better off using only the BIOS" --trainsaw.com
Monsanto is so vigorous about defending its Roundup Ready seed patents because they are in a panic about what's happening in plant biology. Here's why.
Once you reach a point that farm weeds are starting to show resistance to Roundup, the game's up for Roundup. Most crops are grown in areas where 95% of the land is under cultivation. So you have virtually all Monsanto's seed sown in large areas that are pretty uniform breeding grounds for weeds. For years, Roundup Ready was a big advantage, because there were just a few kinds of weeds that could survive Roundup spraying. But now we've reached a point where 94% of the farmland is under cultivation with Roundup Ready and it's getting sprayed every year at the weeds' peak vulnerability times with Roundup, putting massive selection pressure on the weeds.
Once you reach a level where 1% of the weeds are resistant, and 94% of them get sprayed with something like 90% mortality, you get a next generation of weed seeds that's about 5% resistant. They year after that it's about 20% resistant. At this point farmers still see some value in Roundup. It still gives them an 80% reduction in weeds. But next year it's about 57% resistant. Now the farmer is frustrated. He sprays and sprays again and curses Monsanto. His crops are OK, but he's not doing as well as the guy down the road who doesn't spray at all but uses other methods for weed reduction.
But Roundup has been his method for 15 years and he's reluctant to try something new.
The next year, 87% of the weeds are resistant to Roundup. He sprays and only a handful of weeds die. He knows he sprayed at the right time. His neighbors are all bemoaning the same problem. "It ain't the Roundup. It's the weeds," one buddy says. "I got some on my grass and it was dead as fuckall the next morning. The weeds have adapted."
Roundup sales plummet mid-year. The company rep calls the feed store. "Farmers ain't buying it no more.," the manager tells him. "They say it don't work no more." It makes headlines across the country.
The next year, Roundup sales are zero, and there's no market for Roundup Ready seeds. Farmers are looking for other seeds that give the best yield on their soil type and moisture level.
The only way Monsanto keeps a money stream on the Roundup product is selling it to city dwellers to kill dandelions and crabgrass. But by now it's adapting in the city as well.
So they either introduce a new plant killer and have a giant campaign to get farmers on board -- farmers who feel screwed by paying for two years of overpriced seeds and worthless chemicals -- or they get out of the seed business.
Unless they can enforce a patent right on every seed that has their gene in it no matter how many generations removed from their production. Because you can no longer find a pure source of seed uncontaminated by their gene. Too many farmers have grown it and it has cross-pollinated into everybody's crop.
And it all sounds richly deserved, but then you realize that the same thing is happening with bacteria that attack our bodies. Only slower, because the breeding ground for those germs isn't under as heavy a pressure.
You're entirely right, except for one thing. Of COURSE the Supreme Court should ask for a VARIETY of input. That's what a court is FOR. To weigh competing legal cases and theories. Sheesh. Whether they BUY the establishment's arguments or not is an entirely different matter, but they should HEAR them.
....but you Americans really are approaching fascism
That is insulting. Everyone knows that we achieved fascism under Pres. Bush. We're just not sure which one.
but there never were a contract..
world was created 5 seconds before this post as it is.
Yes, they can, because they implant the patented genes with a special shuttle vector or gene shuttle. The presence of this plasmid indicates that the gene in question wasn't mutated in the plant itself, but intentionally transported there.
The guy who bought the seed from a third-party was not party to ANY contract.
The guy who sold them, and the company that produced them - possibly they DID have a contract. Possibly that contract IS breached. But that's a *contract* dispute between those two parties. You can try to sue that seller for the perceived loss of value of Monsanto assets due to their breach of contract, if you like.
But trying to sue the guy who bought them (who at worst has been conned into buying something "illegal") is like trying to sue the guy who bought your TV from a pawn shop, not knowing it was stolen. Except there is no theft, in this instance, only an "unauthorised copy", so no intention to permanently deprive, and no case of handling stolen goods either.
What you're trying to say is that you own ANY plant that, by natural process, has acquired genes that were originally obtained from a Monsanto plant. That's like suing because your dog has acquired a specific colour because his parents had bred with a dog that come from a "company-owned" stock. It's like suing because someone's horse has acquired Red Rum's genes from somewhere. And just as fecking ludicrous to try to defend.
Now Monsanto is suing organic farmers for 'using' plants with 'monsanto's genes' in them. The thing is that: organic farmers can't make use of the 'patented' genes because they can't use herbicides. In other words, Monsanto is suing them -- not because they're using Monsanto's patented capability, but rather just because they're (re)planting seeds that happen to be contaminated with Monsanto DNA.
Then the farmers, not having billions of dollars of patent income an a pack of on-salary lawyers to back them up, sell their Farms to Monsanto (at a loss?) rather than pay hundreds of thousands (or millions) of dollars to defend themselves.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
Later: If you have eaten food grown with Monsanto seeds, your body is the intellectual property of Monsanto. Monsanto's property must be in there somewhere, right?
At one time, the U.S. was a nation of which citizens could be proud.
I would challenge "supremacy of the military" on the grounds that our Commander in Chief is, and always has been, a civilian. A veteran, perhaps, but never an active-duty soldier. And the second-in-command since 1949, the Secretary of Defense, is also a civilian
The actual criteria, as explained on the web page, isn't how high active military are in the political chain, but rather how much a country spends on military and how often it uses its army as a solution to the problems.
Supremacy of the Military - Even when there are widespread domestic problems, the military is given a disproportionate amount of government funding, and the domestic agenda is neglected. Soldiers and military service are glamorized.
And as seen from outside (from the other side of the atlantic pond), the USA seem to fund disproportionately a lot their armed forces, and seem to think that fighting wars (Irak, Afghanistan) is the best solution. Active soldiers are seen as doing something patriotic. These wars have cost unbelievible amounts of money, yet the country still hesitate to spend money on public health (the whole debate about medicare/medicaid).
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
The left has been extremely critical of the Obama administration. The left has been consistently critical of his attacks on civil liberties, his wars, his attacks on medical marijuana producers, his deportations, his attacks on whistle blowers, and his obsequiousness to corporate power and the security state. Everyone has heard of the Occupy Movement. The left has challenged Obama's power and leadership on a scale unimaginable of the right-wing during Bush's term.
The summary uses the term "patent exhaustion", which some people might not be familiar with. This is the doctrine of first sale for patents. Patents don't just cover the manufacture, sale, or distribution of protected devices/etc, they also cover the use, private, commercial, or any other kind of use. The law as written would therefore mean that you can patent your device, sell it, and then sue your customers for using it. So the courts have decided that OBVIOUSLY they can't do that, so the first time you sell a device, your patent interests are "exhausted" and can no longer be used to prevent the use of that particular device.
This is a complicated court case because patent exhaustion is not written down anywhere, it's a wibbly wobbly thing. But as usually stated, it covers the one device. You cannot buy one patent device, and then make your own copies and sell them, because only the one device is "exhausted", and the patent is not nullified. On the other hand, patent law says that if you buy a patented device that can make things, then patent exhaustion also allows you to sell the things made by that device, if they are not covered by patents. That is to say, although things made by a patented process are protected by patent law, if you can legally use such a process (whether by license or patent exhaustion) the patent rights no longer extend to the product. So the court here must decide if that includes self-replication.
On the one hand, the idea behind the Doctrine of Exhaustion is that its pretty obscene to sell somebody something and put the burden on THEM to research all of the currently valid patents to make sure they're allowed to use the damn thing. So that should imply that Exhaustion applies to all intended uses of the patented product. So if a seed is intended to be grown, patent exhaustion would apply to all uses of the final plant. Since for thousands of years farmers have replanted crops using seeds from the last generation, that should be an inalienable intended use of a plant. On the other hand, if you have a Star Trek Replicator which you have rightly patented, its intended use is to make things. So if it can make patented parts of itself, that is part of its intended use? (Other posters here have suggested such a thing). I'm not sure of that. I think for that to apply its intended use would have to be self-replication specifically. That is to say, its purpose is not to make itself specifically, but to make whatever pattern you give it. So patent exhaustion on the replicator would not extend to pattern files you feed it. Besides which, the Doctrine of Exhaustion only applies to unencumbered sales, not to licensed sales or leases or anything else. So if it was truly a concern, they could make you sign a license when you buy the replicator, which explicitly enumerates how you may use the patented device.
ASCII stupid question, get a stupid ANSI
Except the DRM can infect other plants.
This is the problem. If Monsanto would have developed sterile or seedless plants then I don't think anyone would have been complaining. It was the fact that they developed fertile plants which then sterilize themselves (and any other non-Monsanto plants nearby) through the process of fertilization, that made it a horrible, horrible idea.