Monsanto Wins Patent Dispute Against Farmer Who Bought Legal Seeds
from the patent-insanity dept
We've had numerous stories of Monsanto's rather aggressive patent enforcement efforts, and unfortunately it appears the company has chalked up another victory in the courts. Glyn Moody points us to the story of CAFC (the nation's patent appeals court) siding with Monsanto against yet another farmer.The details of this story are really quite incredible. The farmer, Vernan Bowman, bought official Monsanto seeds and planted his crops. Yet, Monsanto has rules that say you can't re-use "Roundup Ready" seeds, but you can apparently sell "second-generation" seeds to grain elevators for use as "commodity seeds," and doesn't require that there be any restriction on the sale. Bowman later bought a bunch of such "commodity seeds," which included some Roundup Ready seeds, and some that weren't. Bowman was able to determine which of the plants came from Roundup Ready seeds... and then saved those seeds for replanting. Monsanto claimed this was infringement, even though the seeds were legally sold to the grain elevator and then from the elevator to Bowman without restrictions. On top of that, while Bowman had signed an agreement for his original seeds, he did not with this batch (and, indeed, even Monsanto admits he didn't break the user agreement -- just patent infringement for using the seeds).
It's difficult to see how this is possibly infringement. In common patent law terms, the patent issue should be "exhausted." Setting aside the insanity of using patents to tell farmers they can't re-use their own seeds, once Monsanto has given farmers the rights to sell second-generation seeds to the grain elevators for resale with no restrictions, it's hard to see how Monsanto should have any subsequent patent claim on any further use of those seeds or their progeny. In fact, Bowman was so sure that he was doing absolutely nothing wrong, that he freely shared the details of what he did with people from Monsanto. But the court, as it seems to do with alarming frequency, seems to see no trouble with granting a patent holder significantly extended control.
Patent exhaustion is supposed to cover these situations. A few years ago, the Supreme Court, in the Quanta case, made it clear (or so we thought) that a legal sale of a licensed component "exhausts" the patent holder's rights to go after later buyers in the supply chain for infringement. Bowman correctly pointed out that if this isn't a clear cut case of patent exhaustion, then the concept is pretty useless.
Monsanto's bizarre argument is that while it agrees to let farmers sell the seeds as a commodity without restriction, it still doesn't want anyone to plant with them, so anyone who does so did not make an authorized purchase, and thus no exhaustion has occurred. I can't see how that makes any sense at all. First of all, no restrictions were placed on the sale, so later claiming restrictions makes no sense. Furthermore, retroactively declaring a sale by two separate independent parties "unauthorized," after the fact, based on what the buyer does, is flat out crazy.
The court here says that exhaustion is meaningless, because the seeds Bowman planted are new seeds, and thus newly infringing -- yes, despite the legal purchase:
Patent exhaustion does not bar an infringement action. Even if Monsanto�s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto�s Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article.It's hard to read decisions like this and not realize how horribly broken the patent system is, aided by courts like CAFC and a Congress that fails to fix such clear abuses.
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Filed Under: cafc, patent exhaustion, patents, roundup ready, seeds, vernon bowman
Companies: monsanto
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Oh never mind...
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The plant itself infringed on the patent, not the farmer.
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Re: The plant itself infringed on the patent, not the farmer.
How does one sue a person for patent infringement for using the item exactly as stipulated in the patent? At best I would say a TOS or EULA violation.
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Re: Re: The plant itself infringed on the patent, not the farmer.
"By planting this seed you agree to the following terms of service: (...etc)"
;-P
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Re: Re: The plant itself infringed on the patent, not the farmer.
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I need a chiropractor
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Can a judge be bought?
Any reasonable person, seeing rulings as genuinely bizarre as this one, must wonder how much (hypothetically, of course) it would cost to buy a federal judge.
Such a reasonable person might also consider Monsanto's determination to win these cases and the amount of money Monsanto has spent to do so in the past, and one might reasonably wonder what they would not do to win.
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Re: Can a judge be bought?
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Re: Can a judge be bought?
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Re: Re: Can a judge be bought?
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Re: Re: Re: Can a judge be bought?
It's a panel of three judges, not a judge. And, no, I don't think they're "incompetent." I just think that they've been brought up through a system that is completely broken, and even though they have the power to fix things, they let things creep ever worse.
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Re: Re: Can a judge be bought?
Yes.
Do humans have a proclivity for 'putting themselves first'?
Yes.
Do you think some judges would exercise this proclivity at the expense of ethics?
Now, you answer the question...
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Re: Re: Re: Can a judge be bought?
Now, you answer the question...
And Mike answered that:
Eh. While there may be some corrupt judges out there,
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Re: Re: Can a judge be bought?
"Tinfoil hat wearers" are your prime audience, Pirate Mike.
The idea that a decision like this was "bought" just doesn't pass the sniff test.
Your comment that this somehow shows "how horribly broken the patent system is" doesn't even pass the laugh test. I know you're writing for the intellectually-incapable, but if you have an argument then make it. Tell us exactly what's wrong with the system and how you propose to fix it. Otherwise, you're just a sensationalist, idiotic hack.
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Re: Re: Re: Can a judge be bought?
Or do you not believe that genes are a product of nature?
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Re: Re: Re: Can a judge be bought?
This blog is chock full of articles explaining what's wrong with the patent system and suggestions for improving it, and you know this because you regularly pollute those articles with comments like this.
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Re: Re: Re: Can a judge be bought?
Yeah, I've never posted that before.
http://www.techdirt.com/articles/20110819/14021115603/so-how-do-we-fix-patent-system.shtm l
In the meantime, you continue to demonstrate how even if someone comments "anonymously," it's quite easy to figure out who they are from the things they say.
Finished law school yet?
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Re: Re: Can a judge be bought?
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/mindboggle
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Re:
That's been the law for the past 81 years: http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_161.htm
Google is your friend.
See also: https://secure.wikimedia.org/wikipedia/en/wiki/Plant_Patent_Act_of_1930
and https://secure.wikimedia.org/wikipedia/en/wiki/Plant_Variety_Protection_Act
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Monsanto, just a part off the evil plan
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Too much power in the corporate hands. Too much.
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Thousands of farmers should do the same thing to Monsanto, simultaneously each filing bogus lawsuits against Monsanto to bankrupt them.
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Re:
need a bit more of that.
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http://www.bu.edu/law/faculty/scholarship/workingpapers/Bessen-Ford-Meurer-troll.html
N ow Monsanto is just priceless, they set the bar for corruption.
I do wonder why no farmer has sued Monsanto for loss of earnings because their crops got contaminated by round-up ready seeds.
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Re:
https://rt.com/usa/news/organic-monsanto-lawsuit-seed/
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Re: Re:
"270,000 organic farmers filed a lawsuit in March 30 in an attempt to keep a portion of the world�s food supply organic. The plaintiffs in the case are members of around 60 family farms, seed businesses and organic agricultural organizations.
Led by the Organic Seed Growers and Trade Association, the suit lashes out at Monsanto to keep their engineered Genuity� Roundup Ready� canola seed out of their farms. Organic agriculturalists say that corn, cotton, sugar beets and other crops of theirs have been contaminated by Monsanto�s seed, and even though the contamination has been largely natural and unintended, Monsanto has been suing hundreds of farmers for infringing on their patent for incidentally using their product."
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Re:
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But are seeds "people"?
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Re: Re: Re:
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It's actually a dirty word globally.
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Monsanto needs a stake through the heart
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I used to work for a Monsanto agency
Standard MO for my employers was to offer seed to the local farmers. if a farmer rejected our offer, then we would sneak into their fields at night just after planting time, and scatter Monsanto seeds around the field.
Then, if we failed to make quota, we could "report" the seed use to our bosses so the farmer could be sued
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Re: I used to work for a Monsanto agency
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Re: Re: I used to work for a Monsanto agency
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Re: I used to work for a Monsanto agency
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Re: I used to work for a Monsanto agency
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Re: Re: I used to work for a Monsanto agency
Or are you seriously saying that you think readers may think the comment section on this (or any) site represents the undiluted truth, and would take some rash and unadviced action because of it?
In that case, that is more a problem with the reader than the poster. Or possibly the edcucational system. Or both.
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Re: Re: Re: I used to work for a Monsanto agency
no, what i am saying is that that is not a comment. it is an allegation of felony fraud.
Or are you seriously saying that you think readers may think the comment section on this (or any) site represents the undiluted truth, and would take some rash and unadviced action because of it? "
while i sympathize with ac fear of retaliation, what he is describing is accessory to criminal activity. i frequently post here and other places as anonymous, and believe the freedom to be ac is a vital part of any discussion, but imho, this "commenter" needs to put up or shut up.
what kind of society do we live in if everybody sees who stole my car, but nobody will stand up and give evidence against the thieves, for fear they will "get him"? and that is a very different thing than using ac to put forward an unpopular opinion.
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Re: Re: Re: Re: I used to work for a Monsanto agency
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Re: Re: Re: Re: I used to work for a Monsanto agency
That would be just about every society, since the evolution of humans on earth. Having a properly-working whistleblower protection scheme in place for crimes committed by elite persons, is extraordinarily unusual. Most pollies are nowhere near figuring it out.
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Re: Re: I used to work for a Monsanto agency
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I only found out what was happening when I was asked to drive one of the salesreps out to the fields one night when the regular guy was sick. The rep bragged to me about what he was doing, and that's how I found out.
When I quit a few days later, I got called into the office by the rep I drove, who told me to keep my mouth shut or else I'd get charged for theft from the company.
"We're Monsanto. The cops here will do anything we tell them to do. We can make enough evidence to put you in jail."
I'm a licensed driver with clearance to drive secured loads. There is no doubt in my mind they can and will destroy me if they want to.
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Speaking of manure...
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they're bloody SEEDS.
if nothing else, they're naturally self replicating. attempting to write contracts saying they shouldn't is about as intelligent as contracts saying fish shouldn't swim, and if the farmer is doing the labour, and the thing is growing on his land, why should he not sell the result? he bought seed, he used seed, the end result was more seed, which was then used and/or sold.
gah.
forget the logic of the ruling, the logic of a system that allows the situation to arise in the first place is bad enough that the best solution to the problem involves judicious use of artillery.
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LMAO! Jesus, chubby. You really are the King of the Tinfoil Hat Wearers. You read one case that you don't like (and I'm guessing don't actually understand), and you think that's proof positive that the whole patent system is broken. Add to that the conspiracy theory nonsense about the CAFC and Congress, and I'm rolling the on the floor laughing. Classic, Pirate Mike. Classic.
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Wait, let's not skip over it
Mike, let's not set aside that particular insanity shall we? Because until you can rectify Insanity #1, any further insanities are moot. If you accept Insanity #1, then even more insanity shouldn't bother you!
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I find this argument uncompelling
It's not a commodity if it's use can be differentiated from other commodities sold with the same label.
Can you imagine buying barrels of oil on the open market, only to find that the particular barrels you bought are not allowed to be turned into diesel.
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Don't sell self-replicating machines if you don't want them used
Then don't make a self-replicating invention! If you sell me a robot that will make patent-violating copies of itself if I drop it on the ground, then I think that's should be the inventors problem, not mine.
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What's next?
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Re: What's next?
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Monsanto should have gotten nailed on sloppy drafting
"While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot �replicate� Monsanto's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants."
How does "any other conceivable use" NOT include replication? If Monsanto didn't want to grant a wide open license for sales to grain elevators, they could have. The court doesn't have to rule that the new generation would not be normally infringing and thus "eviscerate" Monsanto's rights, they could have used Monsanto's agreement to show that Monsanto itself structured it's agreement so as to grant permission to "replicate" and thus brought this on itself.
However, I also second the comments of all former commenters, these are SEEDS, they grow without any intervention; they can get into my field without my knowledge. If Monsanto can rightly restrict what can be done with seeds after the fact (as in this decision), then replanting what I think are actually commodity seeds still leaves me open to an infringement claim, should Monsanto ever suspect their seeds are in my commodity crop. If grain elevators keep lists of who they sell to, and the percentage of Monsanto is really as high as 94%, this is deeply troubling to me.
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Re: Monsanto should have gotten nailed on sloppy drafting
One of the two patents involved in this matter expires next month, and the other in three years.
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Re: Re: Monsanto should have gotten nailed on sloppy drafting
Of what relevance is the patents' expiration date? A bad decision is a bad decision, and has lasting impact beyond the present dispute. Also, (again from the opinion, which I read) the farmer's actions go back several years, if you're trying to say this shouldn't matter to the parties, you're wrong there too.
In reality, you're probably just a troll, but I really couldn't help feeding you. I'm a sucker for being called "person."
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Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
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Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
As others have raised in the past, the gravamen of the defense was "patent exhaustion", and in line with at least two other previous cases that served as precedent for this case, the court rejected the defense.
The case thus devolved to whether or not the defendant had engaged in activities that infringed the "make" and "use" rights associated with the patents before the court. The court answered the question in favor of Monsanto.
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Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
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Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
This is not a provision with which I have ever dealt, so how it fits into the overall "equation" is not immediately apparent to me. However, I do understand the reasoning behind the court's opinion regarding self-replicating materials such as seeds. To hold otherwise would be tantamount to declaring that the patent was no longer of any force and effect immediately after the sale of the first bag of seed to a customer.
You do, however, raise a very valid point, and I have asked a colleague at Monsanto if he might be able to shed some light on the provision for my personal benefit.
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Re: Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
On your second point, my guess is that the representative would say that while producing a new crop of seeds may be a foreseeable result of planting, which is an allowed use following a "commodity" sale, the newly created crop of seeds should be destroyed in order to prevent damage due to the infringing act of creating a new product. While I disagree that this is what the license grants, partly due to its language, and partly due to other provisions restricting this behavior as it regards original purchasers, it is not an entirely meritless reading, especially in light of the current limits of the exhaustion doctrine (ie, the patent is only exhausted only as to the actually sold product).
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Re: Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
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Soon food is going to be similar to electronic entertainment, easy to make, impossible to get a license to do so.
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Patents Don't Sue People ...
This kind of thing only happens in places where the politicians try to clamp down on patents. Where people are allowed to own and carry them freely in public, you don't see any patent fights happening at all--everybody is perfectly respectful of each other's Intellectual Property.
Patents are what has kept us free from having the Government steal our ideas for 300 years. We're not going to give them out without a fight.
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Re: Patents Don't Sue People ...
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Do I report the company, cause 50-500 people to loose jobs, send the company into bankruptcy etc, or do I walk away and shake my head.
Assuming the option to do nothing has been exhausted, IE you could go to jail if you continue, Walking away is an accessible answer. Many accountants will take this course of action.
Lawyers will do something slightly different, if a defendant will lie on the stand, and the lawyer knows this, they can ask to dismiss them selves from the case, usually the judge will thank the lawyer for doing this and ask the lawyer to stay on the case as the lawyer walking away can cause even more damage.
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By the standards the court is applying, an actor or model could sue their offspring's spouses for copyright violation, because they are making children that resemble the actor/model! For that matter, in the case of an accidental pregnancy (say, from a broken condom), if the child resembles the parent, the parent could sue the child!
Would a cease & desist mandate plastic surgery? Would DMCA apply? Get plastic surgery to alter your appearance, or go to prison?!?
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Re:
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Don't see the problem...
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One of the most important issues that these articles never acknowledge is that patents have allowed private individuals/companies to control the global food supply. Never in our history has anyone owned an entire strain of food until now, and it has dangerous implications for global food security (http://internationalpost.co/seed-patents-controlling-the-worlds-food-supply/).
We've lost most of our plant genetic diversity, many farmers no longer develop their own seeds, and the seed-sharing systems that have been vital to human survival for 10,000 years no longer exist in many parts of the world because of seed patents.
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