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.

Filed Under: patent exhaustion, patents, seeds, supreme court, vernan bowman
Companies: bsa, monsanto

Organic Farmers' Preemptive Lawsuit Against Monsanto Patents Tossed Out For Being A Bit Too Preemptive

from the can't-declare-just-yet dept

Monsanto has quite a track record of going after farmers for making use of its "patented" seeds, even in a case that involve seeds that blew onto a farm from a neighboring farm. So, it wasn't entirely surprising to see a group of organic farmers preemptively sue Monsanto last year, asking for a declaratory judgment that they did not infringe. However, the judge in the case has now dismissed the case, noting that for a declaratory judgment, there has to be a real conflict, and Monsanto keeps insisting that it won't sue these farmers. From a legal standpoint, this argument makes sense (and the declaratory judgment standard can be pretty high in some cases -- especially if no direct threat has been issued). But, it still seems unfortunate. Given Monsanto's past actions in other cases, even if it says it won't sue now, plenty of farmers are reasonably scared about what will happen down the road. But, for now, they just have to wait and hope that Monsanto seeds don't show up on their farms...

Filed Under: declaratory judgment, organic farmers, patents, seeds
Companies: monsanto

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.

Filed Under: cafc, patent exhaustion, patents, roundup ready, seeds, vernon bowman
Companies: monsanto

Monsanto Sued By Organic Farmers Who Don't Want To Be Accused Of Patent Infringement

from the patent-madness dept

Monsanto's incredibly overaggressive use of patents to corner the market on certain crops and to bully farmers has been well-documented over the years. Some of the really crazy stories involve Monsanto accusing farmers of patent infringement, because some of its "patented" seeds were used by neighboring farms, and the newly grown seeds were blown onto the neighboring property by wind, where they grew new plants. Now, a group of organic farmers fearful of being hit with similar threats and/or lawsuits have preemptively sued Monsanto asking for a declaratory judgment that they don't infringe, while also seeking to invalidate the patents. The full filing, embedded below, includes a description of why the farmers think that Monsanto's patents are invalid anyway, including the claim that Monsanto's modified seeds were not actually "useful" (it cites multiple studies debunking claims by Monsanto of the advantages of its seeds) and therefore, not patentable (since, in theory, patents are only allowed on "useful" inventions). Should make for an interesting case, though I would guess it won't get very far...

Filed Under: farmers, patents, seeds
Companies: monsanto

Bill Gates Foundation Investing In Monsanto?

from the that's-not-innovation dept

This is unfortunate. The Bill & Melinda Gates Foundation has certainly been hard at work trying to improve healthcare around the world, but the latest news is that the Foundation has decided to invest in Monsanto, a company famous for widely abusing intellectual property laws to make people a lot less healthy, to increase the cost of some key foods important to feeding the hungry and to generally scare researchers from sharing important information with one another, for fear that it will be patented and locked up. If the Foundation really believes in making people around the globe healthier, it wouldn't be investing in Monsanto, but working hard to break down the barriers that Monsanto has put up to making people around the world healthy.

Filed Under: bill gates, healthcare, patents, seeds
Companies: bill and melinda gates foundation, monsanto

European Top Court Tells Monsanto It Can't Abuse Patent Law To Stop Import Of Argentinian Soymeal

from the live-by-the-patent... dept

Seed giant Monsanto is a case study in how abusing patent laws can create serious anti-competitive results. Monsanto, of course, patented various genetically modified seeds, and then aggressively used patent laws around the world to make it so that it was effectively impossible to do much without having to pay Monsanto. The US Supreme Court made things even worse a few years back by saying that Monsanto's patents were infringed upon when farmers hung onto seeds from this year's crop to plant next year (a very common practice in farming). Last week, the US Supreme Court again helped out Monsanto by ruling (mostly) in its favor in another case concerning Monsanto seeds.

However, the company is starting to see a lot more problems with its aggressive stance around the world. This week, the European Court of Justice smacked down Monsanto over its attempt to bar the import of Argentinian soymeal. Apparently Monsanto had failed to get a patent on its famous Roundup Ready soybeans in Argentina (which now dominate the market), and dealt with it by blocking the import of such soybeans to other countries. Argentinian producers figured that if they couldn't sell soybeans directly, they could process it into soymeal and sell that. Monsanto claimed that because the soymeal came from soybeans that would be patented in Europe, the soymeal was also infringing. The court disagreed.

That the court disagreed wasn't a huge surprise. The court had more or less made that clear a few months ago. Because of that, Monsanto tried to duck an important ruling against it by settling the dispute and withdrawing the original patent complaint. The European Court seemed to decide it wasn't going to let Monsanto off that easily. Even with the complaint withdrawn, the Court still went ahead with the judgment, making the point clear.

Separately, some governments are now kicking off investigations into Monsanto's advertising statements about the very same Roundup Ready soybeans. Combine all of that and Monsanto also reported dreadful earnings, with a 45% profit drop.

Once again, we're seeing what happens when you live off of artificial monopolies. They can make you rich in the short term, but they're no trick to building sustainable businesses. What the government gives in the form of monopoly rights, it can also take away.

Filed Under: argentina, europe, patents, seeds, soy beans, soymeal
Companies: monsanto

How Monsanto Used Gene Patents To Corner The Market In Seeds

from the you-can't-eat-without-eating-Monsanto dept

Dark Helmet points us to the news of an Associated Press investigation into how Monsanto basically cornered the market in seeds by using gene patents and coercive licensing agreements that basically make it impossible to grow certain products without having to first reach a restrictive agreement with Monsanto. And they did this all in about a dozen years. Gene patents are already troubling enough, and reading this report on how Monsanto used its gene patents to basically wipe out all competition is quite telling in exactly how patents can be used to significantly harm a market. Of course, beyond the ridiculousness of gene patents, this situation has been made worse by the recent Supreme Court decision that said that Monsanto could put an end user license agreement on seeds, such that even if you collected seeds from your own harvest to replant them, you could be found guilty of infringing on Monsanto's patents. The investigation here details how Monsanto basically has completely cornered the market, even limiting publicly funded research into certain seeds. And, of course, now the company is raising prices on various seeds when many farmers have little in the way of other options.

Filed Under: gene patents, patents, seeds
Companies: monsanto

Grapes With An EULA

from the what-the-world-is-coming-to dept

In the ongoing trend of adding EULAs to tangible goods, Boing Boing points us to a photo highlighting the fact that certain bags of grapes apparently come with an effective EULA forbidding reproducing or propagating "any portion of the produce, including (but not limited to) seeds, stems, tissue and fruit." Perhaps this is no surprise given the (in our opinion, awful) Supreme Court ruling earlier this year that EULAs on seeds were legit. However, at least in that case, it involved a farmer buying seeds specifically for planting purposes. Putting an EULA on grapes you pick up at the local grocery store just seems extreme. Plus, given the tiny print on the bottom of the bag, I'd imagine that the grape growers who put the EULA there would have a hard time enforcing it, as most buyers could credibly claim not to have even thought to read it, let alone "agreed" to it.

That said, I have to admit that, prior to this, I never once had considered reproducing or propagating the seeds, stems, tissues or fruit of grapes I had bought. I've got a couple bags of grapes in my fridge right now, though, and now I'm curious about figuring out what it would take to do such "propagating" just for the hell of it. Of course, I checked and they don't seem to have been the kind that came with EULAs, so that takes all the fun out of the propagating.

Filed Under: eula, grapes, seeds

Supreme Court Allows EULAs On Seeds

from the don't-drop-those-appleseeds,-johnny dept

Richard Ahlquist writes: "A farmer has now felt the wrath of the SEULA or the Seed End User License Agreement! It turns out one farmer who goes by the name Homan McFarling decided after his crops came in to hold some of the seed generated from his produce and use it to replant the next year. Evidently the seed police at Monsanto found out about this (perhaps he didn't buy any new seed the next year) and sued McFarling. That was in 1999. Fast forward to today and you will find that the Supreme Court has decided that he did indeed violate the license agreement by planting his own seeds and he is being fined $375,000.

The story presents an interesting thought. These genetically engineered strains are built to thrive better than our existing crops. Once the seed manufacturers have managed either through attrition or engineering to destroy our natural plants, they will control the agriculture world wide because in order to grow anything you need seeds. If it's illegal to hold seeds from the crop you grew to replant because of the license agreement it would effectively mean an end to many smaller farms as they become unable to compete with the superior seed and the prices charged for it. Now where is that trademark application so I can trademark SEULA....."

We wrote about this case initially a few years ago, when it was going to the appeals court, where we hoped there would be a little common sense applied, recognizing how silly it is to tell someone they cannot replant seeds from the very plants that they, themselves, grew. It's rather unfortunate that the Supreme Court disagreed. The real problem here is yet another artifact of bizarre intellectual property laws. Tangible goods and digital goods are very different. Intellectual property laws try to make digital goods more like tangible goods, but due to the nature of those goods, it actually provides even more control -- such as when it comes to limiting what a buyer can do after they've bought the product. It's quite depressing that, rather than helping people realize how these laws are problematic, they've just made producers of tangible goods start to drool about the possibility of putting similar rights on tangible goods.

Filed Under: eulas, seeds
Companies: monsanto