Supreme Court Set To Hear Case On Whether Or Not Planting Legally Purchased Seeds Infringes On Monsanto Patent
from the please-get-this-right dept
The Supreme Court will be hearing a big patent case tomorrow. We wrote about it back in 2011 when the federal circuit appeals court (CAFC) put forth an absolutely horrible ruling basically saying that a farmer who legally purchased "community seeds" that included (legally) some Monsanto "Roundup Ready" seeds, violated Monsanto's patent. The case is a bit complex, but I'll just rerun my summary from back then: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).As we noted at the time, this seemed to be a clear case of patent "exhaustion," which the Supreme Court has supported in the past. Under patent exhaustion, once you sell a "licensed" offering, reselling it further down the supply chain does not infringe on the patent, since the initial purchase was authorized and the patent holder's rights over that specific product have been "exhausted." CAFC said exhaustion didn't apply here because the seeds are "new." That seems like a very troubling interpretation, and hopefully the Supreme Court (yet again) smacks a bad CAFC patent ruling down.
Lots of big farms have come out in support of Monsanto and, tragically, so has the federal government (pdf). Believe it or not, the Business Software Alliance (mostly a Microsoft front) has also sided with Monsanto (pdf), ridiculously arguing that a ruling against Monsanto could "facilitate software piracy on a broad scale." That makes no sense, especially since software "piracy" is a copyright issue, not a patent issue. However, they're arguing that people will interpret this to mean that "temporary additional copies" of software are made all the time (i.e., in RAM) and somehow that leads to piracy. Having read the brief a few times, they never really explain how they make that leap in logic, but they sure do bring up the totally debunked bogus stats about how copyright infringement is costing the industry "billions."
The case really is ridiculous on many levels, but seeing how much firepower has come out in support of Monsanto (basically tons of big companies, lawyers groups and the US government), you can see that a lot of people have a lot of money tied up in keeping this broken system in place. Hopefully the Supreme Court sees through all of that and realizes that this entire case is ridiculous.
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Filed Under: patent exhaustion, patents, seeds, supreme court, vernan bowman
Companies: bsa, monsanto
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And the Business Software Alliance have obviously had a reality disconnect and need to be committed.
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WOW
Shouldn't Monsanto be suing the plants, since they are doing all the replicating of patented product?
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IP Maximalist Logic
When corporations find and exploit a loophole, it's just good business sense and the government needs to stay out of the way and stop trying to harm these patriotic American job-creators.
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Re: WOW
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Re: WOW
SERIOUSLY?
We should be all running from these morons. Here in Brazil we had a leading company in these agricultural enhancements called Embrapa. It was awesome but it has simply "decayed" over years. I have a conspiracy theory here: because they offered improvements with very few restrictions to our farmers (including the small ones) there has been a steady and consistency effort from such morons (Monsanto and friends) to 'destroy' the company. I've seen this happen too many times already. Why am I telling this? Because the deck is probably stacked already. Monsanto will win. Not because it's right but because they bribed enough.
These companies are DISGUSTING.
And as a side note Microsoft has solidified their presence in my "never do business with" list ;)
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Defence
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Re: Defence
Company:
Monsanto (InGen)
CEO:
Hugh Grant (John Hammond)
Freetard "Life will find a way" Objects reproducing without company approval:
Roundup Ready seeds (female dinosaurs without males, laying eggs)
So far, it has been going like this:
Monsanto's Lawyers:
Velociraptors
Farmer - Vernan Bowman:
Robert Muldoon (park's game warden)
http://www.youtube.com/watch?v=jaFT6RVz5w4
But one can hope that in the end, it will turn out like this:
Supreme Court:
Tyrannosaurus Rex
Monsanto's Lawyers:
Lawyer (Donald Gennaro)
http://www.youtube.com/watch?v=VMzfrod7hcE
and this too:
http://www.youtube.com/watch?v=OJ9jTOxv7gw
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Entrenched Patent Protection
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This is about greed, pure and simple
They have used these scare tactics to prevent farmers from growing their own seeds rather than purchasing the genetic modified versions.
This has given them a virtual monopoly and patented the building blocks of life itself.
The fact they are trying to prosecute infringement in this case underscores how corporations are using these laws to justify greed and market domination at the expense of our civil liberties.
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Oh ... that's probably because they want to sell all the seed themselves to farmers so they still need plants that actually produce usable seed.
I see no correlation at all between a seed patent and software - they're about as far apart as the ocean and the stars.
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Re:
Never underestimate the ability of very intelligent people to be completely fooled.
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247E and hence 435 seems like a far too unspecific patent on nature, which should make it completely unacceptable. 605 is a production technology and thus a fair patent. It is also clearly exhausted!
The second planting license seems very strange! It would mean that you are infringing if you buy an onion and let it grow seeds in your garden! That sounds like quite an overreach from the contract law.
When that is said, the government and BSA are probably afraid of an increase in "patent exhaustion", specifically the cited case from Bowman is a computer technology patent which somewhat explains BSAs interest.
http://en.wikipedia.org/wiki/Quanta_Computer,_Inc._v._LG_Electronics,_Inc.
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This is just wrong.
If this ruling is upheld, that's basically saying that Monsanto is right, and generalizing the argument. It would be saying not only that genetic modifications are patentable, but also that the organisms containing those genes, and their nth-generation descendants, are also covered by the same patent.
I have a problem with the whole concept of patents on living things. Not only is it ethically questionable, but there are all sorts of legal complications here: Would a patented organism reproducing itself, as opposed to a human inducing its reproduction, count as patent infringement? I can totally see someone making a twisted secondary-liability argument here.
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Re: This is just wrong.
According to Monsanto, yes. They've sued farmers who are simply downwind of farms that use their seeds, since the downwind farmers are getting the benefit of the gene via the normal reproduction process of the plants (i.e. pollen blowing in the wind).
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This is the main event
My theory is that winning cases like this is what motivated megacorporations to promote the piracy scare in the late 00s, after fears of "competing with free" were debunked for good. They want privatized feudalism, where they retain ownership of your property after you've purchased it.
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Re: This is the main event
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"Bowman was able to determine which of the plants came from Roundup Ready seeds... and then saved those seeds for replanting."
Bowman purchased seeds from grain elevators that he correctly guessed would largely comprise second generation "commodity" seeds bearing the RR trait. He did not, however, save those seeds. He planted the seeds he purchased, applied the herbicide R to the crop, and then saved the seeds produced by the plants that survived the application of R. Over time he was able to produce crops wherein the resultant seeds were of the very same type sold to farmers by M. (I mention this only because it was not clear to me from the link which "seeds" were being discussed.)
"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."
M did not claim that Bowman's planting of the commodity seeds he purchased was infringing. Its claim was directed to the progeny of those seeds, i.e., what by then were third and subsequent generation seeds.
While you obviously hold to a different view, I happen to believe that under the circumstances here the patent exhaustion doctrine should not be extended to third and subsequent generation seeds. Those were not the seeds that Bowman originally purchased.
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We should give this a name. I propose "unexhaustion". It's a perfectly cromulent word, I tell you.
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Farmers, you are now all serfs. Enjoy.
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That would certainly fall in line with the current retroactive copyright extensions, and making common words, symbols and phrases trademarkable.
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The whole thing is like if I made a giant Robot that's primary function is to build robots identical to itself. I sell you the robot, then sue you for the robot doing what it is intrinsically programmed and built to do.
Oh, and in some cases I just drop self-reproducing robots in your back yard then sue you for making more of my patented robots. (Like when Monsanto intentionally released pollen from their GM crops to "contaminate" the crops of farmers who didn't but their stuff, then sued them for it.)
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I wonder if there is some sort of "minimum scale" you need to be farming at for it to not count? Can I lease my land to 100 people for farming and then offer to farm it for them in exchange for $1 in rent, but I get 99.9% of the crops? If i get enough renters can i avoid being a "commercial" farm and remain a "series of closely spaced hobby farms"?
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Re: Waves hand....
Lawyer bot - "Looks like those are not the seeds we are looking for, move along folks."
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I humbly suggest that if the Court thought the case "ridiculous" it wouldn't have agreed to hear it. Clearly there are significant issues in play and as usual, TD deems any plaintiff's IP claims as "ridiculous" simply because it disagrees.
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Unless it wanted to overturn a decision that should never have been reached, on account of the case being so ridiculous. Not that I think they're likely to do that. Current SCOTUS jurdges are largely IP maximalists.
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WASHINGTON (AP) � The Supreme Court appears likely 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 Tuesday 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.
Chief Justice John Roberts wondered "why anyone in the world" would invest time and money on seeds if it was so easy to evade patent protection.
The case is being closely watched by researchers and businesses holding patents on DNA molecules, nanotechnologies and other self-replicating technologies.
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It's a shame that farmers have no economic incentive to develop higher-yield crops, or else they could continue to research and develop better crops without Monsanto's guidance.
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farmers have been "researching and developing" better crops since the beginning of time which is why you only save your seeds from your best crops and not the stunted little plants that don't produce.
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Any of them come up with one you can spray with Roundup and not kill?
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Spray the few that made it with more diluted RU. A few more might live, which can be used for new seeds.
Repeat over and over, slowly increasing RU dose, until all survive and you have RU resistant seeds.
Oh...wait...by the time this is done the patent will have been expired for at least a couple of decades.
;)
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The seed has altered genetic material in it, not technology.
Monsanto used technology to alter the genetic material, but the genetic material is not technology.
They are allowed for some reason to attach conditions to the sale of their seed that you cannot keep 2nd generation seeds, but their contract allows you to sell them to grain elevators and further allows those people to sell those seeds to farmers so long as they don't sell it as the type of seed it is and do nothing to distinguish it from the others seeds it's mixed with.
That gives them no rights whatsoever to determine what a third party who purchases those seeds legally from the grain elevators may or may not do with them. Everything is legal and above board and complies with all the terms of their overbearing contracts.
This is an yet another example of an attempt to use money and power to batter people into submission without having a genuine case, if it succeeds it will harm everyone.
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Did you even read the article?
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Monsanto Lawyer:
"Whether or not the farmer has a genetic desequencer to be able to read such a code is immaterial. By using the seed he/she clearly agreed to the terms in the seedwrap license."
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You say that like it is a bad thing.
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Patents on seeds?
this Patent-mania is getting WAY beyond COMMON logic AND reasoning.
And Ticking off farmers is one good way for them to STOP farming and start protesting.
They got no massive income out of their livelihood except surplus from their harvest and what ever money remained after selling their produce THEN buying the supplies need for the next harvest season.
If Monsanto wins this, well... THIS proves that the Politicians and the companies sided with him ONLY wants to drain everyone's bank accounts into their own pockets and accounts, leaving us as poor as the 3rd world country citizens...
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Microsoft. Figures.
Thus proving what we have all believed for a long time now: Microsoft doesn't have a clue how a fucking computer works. This shouldn't be a shock, it shows in all their software.
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Re: Microsoft. Figures.
Software is the compiled source code, making it significantly different than that of the source code.
Software patents are simply an explanation of a method of achieving some goal using software, software patents rarely if ever contain actual source code or 'software' or machine code.
what this farmer did, (and why it gets software people's attention) is effectively "hack" some seed to 'crack' what of those seeds were RR.
Then he used the result of that 'hack' to generate a crop, it is a simple, and obvious clear violation of the terms of use of RR seeds.
and it appears, most groups and courts agree with me.
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Re: Re: Microsoft. Figures.
"what this farmer did, (and why it gets software people's attention) is effectively "terrorist" some seed to 'child porn' what of those seeds were RR."
FTFY, and it makes just as much sense as what you said...
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Re: Re: Microsoft. Figures.
And having corrupt courts and greedy corporations hold the same opinion as you isn't a badge of honor.
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I can just imagine newborn babies (or fetuses in the womb) being the recipient of a cease & desist order. Followed by a choice to either cease using the patented DNA or pay an exorbitant licensing fee. End result: Kids getting repo'd like those poor organ recipients in the movie Repo Men.
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What a silly notion. I have no doubt that situation you paint would Never arise, all that would be required is that the unlicensed children be sterilised to prevent further misuse of the non-licensed genes.
So you can see a reasonable, sensible and rational solution is always available.
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Terminator seeds, just convert them from "Plant" to "Human".
So you can see a reasonable, sensible and rational solution is always available.
Yes, a patented "final" solution.
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Yup, that makes sense....
... unless Monsanto doesn't get their cut.
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If the Supreme Court rules against these tons of big companies, lawyer groups and US government then these will no doubt in return refuse to give their support/money for anything else and thus stifle anything that is supported by these orgainsations etc. and is that what the Supreme Court want to rule in favour off.
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it appears that 'the system' is working exactly as required, it has clearly got the ability to identify loopholes (and hacks) and have already in place fixes for loopholes and "gaming' the system.
we have the benefits of this technology ONLY because the developers of it have the financial ability to do the necessary development, research and testing, they only way they can continue to develop, market and support further development is by recouping profits from the products they have already developed.
The same applies to software development, it costs real money to create a viable, quality and functional OS or application, money you have to get from somewhere, if they do not make that money, or make less money due to theft then it is harder for them to pay programmers and all the necessary staff to create more, do more development and testing, marketing and support.
it's just how these systems work, people require income, and that income comes from profit they create products that other people are willing to pay for, that provides money for a continuation of that income (from profit) for further development. That income, (therefore that product) has to be protected from theft. IF the level of theft is too high there is less profit, less money for development and everyone losses out due to a lower variety and lower quality product.
Here at TD you of course don't like it, because it's stopping someone game the system, and appears to benefit the people (or company) that stands to lose profit from this 'cheating'.
Governments support Monsanto because they employ lots of people and like it or not develop products that increase profits and output from Farming.
It's viable for farmers to legally purchase RR seed, get higher yields and higher profits even factoring in the extra initial cost for the seed.
So Monsanto profits and is able to continue development and refinement, the farmer benefits with higher yields and profits. And the consumer benefits because of lower market prices (because yields are higher, more product is available).
win, win, win within the system.
The Government wants to see all parties work within the established system, because companies like Monsanto employ thousands of people and develop products that increase the profits and yields of farmers, and creates more available food and lower market food prices.
Governments wants companies to exist, to employ and to profit, to pay taxes and continue to contribute to the economy.
They will (rightly) go after a single farmer who not only is trying to gain advantage over Monsanto but also over other farmers.
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Like the loopholes that allowed business method patents, software patents, and patents on natural processes and genes?
If the system was working, those patents never would have been granted in the first place.
they only way they can continue to develop, market and support further development is by recouping profits from the products they have already developed.
Selling the seeds with onerous terms attached isn't enough? They now have to attach the terms to seeds that they didn't sell? If you don't think Monsanto has made a thousand times or more profit over what they spent to develop those seeds then you are delusional.
Here at TD you of course don't like it, because it's stopping someone game the system, and appears to benefit the people (or company) that stands to lose profit from this 'cheating'.
We're not some hive mind here. I personally don't like patents and copyrights because they restrict what people can do with things they've legally purchased, it restricts the freedoms we claim to cherish in this country, and the evidence is increasingly showing that they are not necessary for the express purpose of which they were designed - to promote the progress - and are used to restrict that progress.
Until we get a copyright and patent system that actually promotes the progress, I say fuck the system that we have now. It is broken, and fixing it requires things that the greedy bastards who have gotten fat off of it will not like and will fight at every turn.
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Your assumptions are so fact-free that my mind boggles.
How do Monsanto's "innovations" benefit farmers? They benefit Monsanto. Period. End of story. They benefit Monsanto so much that people rose up in arms over the Terminator gene that Monsanto wanted to put in all its seeds. It could have ended life as we know it, but it would have been good for Monsanto.
And tell me more about those profits that farmers make. The saying around here (rural Iowa) is that the crop pays the bills and the government check is the profit. Every time something happens that increases farmers income, their suppliers and buyers (middlemen) take a bigger cut. They leave enough to keep farmers in business, because they don't want to have to take the risk of actually farming themselves. But even that is changing.
Farmers do not control their own markets. They do not set the price for their crops. They can only take what is offered. It is the age-old problem with farming. You have to guess which way the market is going at least a year (or more) before you start raising the crop. What other industry operates under those conditions?
The bottom line is that Monsanto doesn't take any of the risk of planting seeds that they sell. They don't stand to lose money on a crop failure of those seeds. They don't have to worry about a market glut. They don't have to plant, cultivate, harvest, store or transport that crop. But they still want to own something that is not theirs. It's like Microsoft wanting to own everything that you produce in Word or Windows... Oh, wait, they already do that! Never mind. Want to ever see your data safe and sound again? Pay for your OS/application again. They will lock it up just as quick as Monsanto will lock up seeds. Forever.
Or maybe it's like buying a movie and wanting to watch it on your TV or on your laptop... Oh, wait! The MPAA already sues people for doing that! Never mind!
It's all part of the great public domain land grab, and Monsanto, Microsoft, **AA is the villain,. Wise up and smell the coffee. Monsanto did not invent DNA.
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How do you determine which of the plants came from Roundup Ready seeds?
Step 1: Plant commodity seeds, let them sprout.
Step 2: Spray them with roundup, kill the plants that are not Roundup Ready.
Step 3: Harvest what's left as normal, now you have a wagon full of next year's Roundup Ready seed, free and legal.
Not that I think Monsanto is right here, they shouldn't be allowed to patent seeds anyway
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Yes, please get this right but I am afraid...
Apparently Mr. Bowman planted commercial beans (some of which were 1st generation progeny of the patented GMO) and sprayed them with Roundup before saving some of them as seed for the next crop. The act of spraying them caused a selection to take place in that only plants resistant to Roundup survived.The saved seeds were arguably exclusively 2nd generation progeny of the original patented GMO.
Another way of looking at it is that Mr. Bowman bought seeds from the general population and then reverse selected to eliminate what he didn't want.
I would expect scotus to seize upon this distinction. Although I personally would want to see exhaustion applied to all progeny (that's just an opinion), the best that will come out of this case will be that the seeds he bought from the grain elevator (from the general population of all seeds) were protected by exhaustion but subsequent generations of progeny resulting from the selection process he applied became new instances of the GMO and are therefore protected.
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Starving Children
The MAFIAA truly is evil. They even charge us to to grow our own food... in the dirt
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