16 ms·

So here's what I gather, after having read the lower court opinion and several of the briefs. Monsanto owns a patent on certain soybean seeds. They sell 1G see

by cduan 14y ago

So here's what I gather, after having read the lower court opinion and several of the briefs. Monsanto owns a patent on certain soybean seeds. They sell 1G seeds to farmers, allowing the farmers to grow them into 2G seeds. The farmers are not licensed to plant the 2G seeds. Bowman bought some 2G seeds and planted them, and Monsanto sued. Bowman says that the planting of 2G seeds is permitted under the doctrine of "patent exhaustion." According to that doctrine, if a patented physical object is sold under proper license, then a patent lawsuit involving that same physical object is not permitted, even if the object is sold to someone else. The lower court said that patent exhaustion doesn't apply to the 2G seeds, because Monsanto only granted a license on the 1G seeds. The 1G seeds are not the same physical object as the 2G seeds. At first I thought this was a simple case, but Bowman is making a very interesting argument in the Supreme Court. It is based on an old case called Quanta. In Quanta, the patent was directed to a certain computer process, and the patent owner sold computer chips with circuitry for performing that process. The chips themselves were useless, of course, but they just needed to be combined with some standard hardware and turned on to work. Did this mean that, by adding the extra hardware, a new physical object had been made that could be the subject of a lawsuit? The Supreme Court said no: because the chips "embodied" the patented invention and only required standard hardware to be added, the chips invoked patent exhaustion, so lawsuits based on their further use were barred. Bowman's argument: the 1G seeds "embody" the invention (by having the DNA and biological machinery to produce 2G seeds), and only "standard hardware" (soil, watering, etc.) needs to be added to get the working invention (the 2G seeds), so therefore the 2G seeds fall under patent exhaustion. The main counterargument is that in Quanta, the original computer chips were still present and intact, whereas the 2G seeds do not include the 1G seeds intact. This requires a narrower interpretation of Quanta, and I could see the Supreme Court going with either this narrower reading or Bowman's broader one. (For fun, you can try to come up with hypothetical cases that are in between: what if the patentee in Quanta had sold semiconductor masks for making chips?)

belorn 14y ago
Do an product need to be intact to count? If this is the core of Monsanto argument, then it sounds to me as completely rubbish and something a court should have no problems throwing out. Lets say I bought a new mousetrap. After purchase, I go around and add/remove aspect of it. I change the color scheme. I change the cheese to a more smelly version. Has it now suddenly become a new mousetrap and is thus no longer the same physical object as first sold? If the seed still embodies the details described in the patent, how is it not still the same object? I could understand Monsanto counterargument if no aspect of 1G seed existed in the 2G seed but thats of course not true. More likely, all patented aspect of 1G seed is all still in 2G seed. If that was not true, than even if Monsanto won, they would loose as they then would have no claim on 2G. Thus the only changes of 1G -> 2G must be trivial and not covered by the patent.
- wr1472 14y ago
  This reminds me a of a line by Trigg in the classic UK comedy Only Fools and Horses (Trigg is a road sweeper for context). In this classic scene, Trigger claims that he's had his road sweeper's broom for 20 years. But then he adds that the broom has had 17 new heads and 14 new handles. "How can it be the same bloody broom then?" asks Sid the café owner. Trigger produces a picture of him and his broom and asks: "what more proof do you need?" From 'Heroes and Villains' (1996) http://uktv.co.uk/gold/stepbystep/aid/579394 http://uktv.co.uk/gold/stepbystep/aid/579394
  - rmc 14y ago
    Also know as The Ship of Theseus. This problem has been around for thousands of years a d no one's sure what the answer is. en.wikipedia.org/wiki/Ship_of_Theseus
    - ims 14y ago
      The problem comes from trying to force a dichotomy between "new" and "not new". This is an interesting article about these types of seeming paradoxes: http://lesswrong.com/lw/no/how_an_algorithm_feels_from_inside/ http://lesswrong.com/lw/no/how_an_algorithm_feels_from_insid...
powertower 14y ago
The question I have after reading the article is - when all purchasable soybean seeds on the market end up being composed of seeds that originated from Monsanto's genetically modified stock (apparently they already mostly are in grain silos), how is anyone going to be able to purchase and grow soybeans without infringing on Monsanto's patent portfolio?
- ScottBurson 14y ago
  Buy organic! To support farmers who don't use Monsanto seeds.
- cbr 14y ago
  when all purchasable soybean seeds on the market end up being composed of seeds that originated from Monsanto's genetically modified stock This is very unlikely to happen. People are careful to keep track of seed varieties. And as long as there are many people who don't want to grow GM soybeans then non-Monsanto seeds will even stay relatively cheap.
  - Retric 14y ago
    Patents also have a finite lifespan. Keep a sead for 20 years before planting an existing patents are useless.
jacquesm 14y ago
What bothers me is that there are people that would spend a lot of time and effort on splitting legal hairs over this, rather than to simply state that such patents are ridiculous and then we can all get on with our lives. This whole patenting of natural organisms is disgusting at a fundamental level.
- glesica 14y ago
  Thank you! Dissecting arguments and playing lawyer is fun sometimes, but not when the stakes are real. Even if legal precedent comes down for Monsanto, that just means that the legal precedent is wrong or incomplete, so who cares what the precedent can be manipulated to indicate... Monsanto is in the wrong here, regardless of how this thing turns out and regardless of how the law ends up being interpreted by the court.
- Androsynth 14y ago
  I disagree. They patented a scientific process, which is what patents were originally designed for. This is a case where patents are actually not disgusting. (If I am misinterpreting the patent, please let me know) Should chemists have not been allowed to patent the Haber Process? That is a chemical reaction. If chemical reactions are occuring all around us, isnt it disgusting to be able to patent it? No, because patenting a scientific process is a (the?) legitimate patent use case. pull to refresh is a disgusting patent. Any of the patents mentioned recently by Samsung or Apple are disgusting. This isn't.
  - jacquesm 14y ago
    No, they abused their knowledge of how seeds work in order to rent-seek on a process that worked just fine for untold hundreds of thousands of years without Monsanto.
    - spacemanaki 14y ago
      But the process I assume you're referring to (farmers saving seeds) has changed, and just in the past 50-75 years. Now farms are massive monocultures and are susceptible to pests so they require pesticide resistent crops. Whether you think that's a good thing or not is another story. Or maybe you think farmers should be able to save GMO seeds. I won't argue with you there, but the process of farming most definitely has changed, and it's not the same as it was thousands of years go.
hkarthik 14y ago
The issues around Monsanto that get people fired up are more around their enforcement of their seed patents and the wide reach they've got on the seed industry as a result. Monsanto has systematically worked to destroy access to seeding machines (which take mature crop and harvest the seeds from them) to prevent anyone from using standard farming techniques to build mature seeds. This in effect forces the average soybean farmer to buy ALL his seeds from Monsanto, because they control the supply to seeds. Additionally, there's a presumption that anyone using non-Monsanto seeds is using a 2G seed that infringes their patent. Farmers are basically bullied away from approaching another source for their seeds. Lastly, Monsanto is only able to effectively enforce these patents in the US. Soybean farmers throughout the rest of the world regularly use confirmed 2G seeds and their governments don't side with Monsanto. As a result, US farmers are forced to pay the cost of higher seed prices due to the "IP theft" going on in the rest of the world.
- randomdata 14y ago
  > Monsanto has systematically worked to destroy access to seeding machines (which take mature crop and harvest the seeds from them) Wait, you mean the combine? They are not hard to come by at all. You will find one on most grain farms. > Farmers are basically bullied away from approaching another source for their seeds. Monsanto already licenses the technology to anyone you might buy seeds from. > Lastly, Monsanto is only able to effectively enforce these patents in the US. I believe Canada was the first location for the successful test of the validity of the patent.
  - protomyth 14y ago
    > Wait, you mean the combine? hkarthik probably meant "seed cleaning equipment" which is quite different from a combine. > Monsanto already licenses the technology to anyone you might buy seeds from. No, that would be false. In fact, they go a step farther and claim that if your neighbor has Monsanto seeds and it drifts into your plots, you need to pay them. Instead of a time honored "you contaminated my land - pay me" we get the reverse complete with bully lawyers. > I believe Canada was the first location for the successful test of the validity of the patent. Yep, and it was a horrifically stupid ruling[1]. 1) http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...
Retric 14y ago
A few non obvious issues, G1 seeds are really G20-G50 in that they are several generations after the initial modification. So Monsanto sells GX seeds which produce GX+1 seeds which is the useful part and are supposed to be sold to make soy products, except they want to prevent a single specific use that of creating full plants that produce GX+2 seeds. Note: GX+1 seeds need to be able to make millions of copy's of there initial DNA sequence to be come seeds so it's a really arbitrary cutoff in that they can multiply millions but not billions of times. Which would happen if the GX plants where left alone.
- fleitz 14y ago
  Hopefully this case eventually involves the Ship of Thessus. Given that the DNA in the G1 seeds undergoes repair, it's quite likely that the original G1 seeds no longer actually contain the original molecules. Also when the seed cells split their DNA some of the original DNA stays with the first cell and some with the second. Given these fundamental questions of identity it's hard to say what is the G1 seed and what is the G2 seed.

by cduan 14y ago

belorn 14y ago

Do an product need to be intact to count? If this is the core of Monsanto argument, then it sounds to me as completely rubbish and something a court should have no problems throwing out. Lets say I bought a new mousetrap. After purchase, I go around and add/remove aspect of it. I change the color scheme. I change the cheese to a more smelly version. Has it now suddenly become a new mousetrap and is thus no longer the same physical object as first sold? If the seed still embodies the details described in the patent, how is it not still the same object? I could understand Monsanto counterargument if no aspect of 1G seed existed in the 2G seed but thats of course not true. More likely, all patented aspect of 1G seed is all still in 2G seed. If that was not true, than even if Monsanto won, they would loose as they then would have no claim on 2G. Thus the only changes of 1G -> 2G must be trivial and not covered by the patent.

wr1472 14y ago
This reminds me a of a line by Trigg in the classic UK comedy Only Fools and Horses (Trigg is a road sweeper for context). In this classic scene, Trigger claims that he's had his road sweeper's broom for 20 years. But then he adds that the broom has had 17 new heads and 14 new handles. "How can it be the same bloody broom then?" asks Sid the café owner. Trigger produces a picture of him and his broom and asks: "what more proof do you need?" From 'Heroes and Villains' (1996) http://uktv.co.uk/gold/stepbystep/aid/579394 http://uktv.co.uk/gold/stepbystep/aid/579394
- rmc 14y ago
  Also know as The Ship of Theseus. This problem has been around for thousands of years a d no one's sure what the answer is. en.wikipedia.org/wiki/Ship_of_Theseus
  - ims 14y ago
    The problem comes from trying to force a dichotomy between "new" and "not new". This is an interesting article about these types of seeming paradoxes: http://lesswrong.com/lw/no/how_an_algorithm_feels_from_inside/ http://lesswrong.com/lw/no/how_an_algorithm_feels_from_insid...

powertower 14y ago

The question I have after reading the article is - when all purchasable soybean seeds on the market end up being composed of seeds that originated from Monsanto's genetically modified stock (apparently they already mostly are in grain silos), how is anyone going to be able to purchase and grow soybeans without infringing on Monsanto's patent portfolio?

ScottBurson 14y ago
Buy organic! To support farmers who don't use Monsanto seeds.
cbr 14y ago
when all purchasable soybean seeds on the market end up being composed of seeds that originated from Monsanto's genetically modified stock This is very unlikely to happen. People are careful to keep track of seed varieties. And as long as there are many people who don't want to grow GM soybeans then non-Monsanto seeds will even stay relatively cheap.
- Retric 14y ago
  Patents also have a finite lifespan. Keep a sead for 20 years before planting an existing patents are useless.

jacquesm 14y ago

What bothers me is that there are people that would spend a lot of time and effort on splitting legal hairs over this, rather than to simply state that such patents are ridiculous and then we can all get on with our lives. This whole patenting of natural organisms is disgusting at a fundamental level.

glesica 14y ago
Thank you! Dissecting arguments and playing lawyer is fun sometimes, but not when the stakes are real. Even if legal precedent comes down for Monsanto, that just means that the legal precedent is wrong or incomplete, so who cares what the precedent can be manipulated to indicate... Monsanto is in the wrong here, regardless of how this thing turns out and regardless of how the law ends up being interpreted by the court.
Androsynth 14y ago
I disagree. They patented a scientific process, which is what patents were originally designed for. This is a case where patents are actually not disgusting. (If I am misinterpreting the patent, please let me know) Should chemists have not been allowed to patent the Haber Process? That is a chemical reaction. If chemical reactions are occuring all around us, isnt it disgusting to be able to patent it? No, because patenting a scientific process is a (the?) legitimate patent use case. pull to refresh is a disgusting patent. Any of the patents mentioned recently by Samsung or Apple are disgusting. This isn't.
- jacquesm 14y ago
  No, they abused their knowledge of how seeds work in order to rent-seek on a process that worked just fine for untold hundreds of thousands of years without Monsanto.
  - spacemanaki 14y ago
    But the process I assume you're referring to (farmers saving seeds) has changed, and just in the past 50-75 years. Now farms are massive monocultures and are susceptible to pests so they require pesticide resistent crops. Whether you think that's a good thing or not is another story. Or maybe you think farmers should be able to save GMO seeds. I won't argue with you there, but the process of farming most definitely has changed, and it's not the same as it was thousands of years go.

hkarthik 14y ago

The issues around Monsanto that get people fired up are more around their enforcement of their seed patents and the wide reach they've got on the seed industry as a result. Monsanto has systematically worked to destroy access to seeding machines (which take mature crop and harvest the seeds from them) to prevent anyone from using standard farming techniques to build mature seeds. This in effect forces the average soybean farmer to buy ALL his seeds from Monsanto, because they control the supply to seeds. Additionally, there's a presumption that anyone using non-Monsanto seeds is using a 2G seed that infringes their patent. Farmers are basically bullied away from approaching another source for their seeds. Lastly, Monsanto is only able to effectively enforce these patents in the US. Soybean farmers throughout the rest of the world regularly use confirmed 2G seeds and their governments don't side with Monsanto. As a result, US farmers are forced to pay the cost of higher seed prices due to the "IP theft" going on in the rest of the world.

randomdata 14y ago
> Monsanto has systematically worked to destroy access to seeding machines (which take mature crop and harvest the seeds from them) Wait, you mean the combine? They are not hard to come by at all. You will find one on most grain farms. > Farmers are basically bullied away from approaching another source for their seeds. Monsanto already licenses the technology to anyone you might buy seeds from. > Lastly, Monsanto is only able to effectively enforce these patents in the US. I believe Canada was the first location for the successful test of the validity of the patent.
- protomyth 14y ago
  > Wait, you mean the combine? hkarthik probably meant "seed cleaning equipment" which is quite different from a combine. > Monsanto already licenses the technology to anyone you might buy seeds from. No, that would be false. In fact, they go a step farther and claim that if your neighbor has Monsanto seeds and it drifts into your plots, you need to pay them. Instead of a time honored "you contaminated my land - pay me" we get the reverse complete with bully lawyers. > I believe Canada was the first location for the successful test of the validity of the patent. Yep, and it was a horrifically stupid ruling[1]. 1) http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...

Retric 14y ago

A few non obvious issues, G1 seeds are really G20-G50 in that they are several generations after the initial modification. So Monsanto sells GX seeds which produce GX+1 seeds which is the useful part and are supposed to be sold to make soy products, except they want to prevent a single specific use that of creating full plants that produce GX+2 seeds. Note: GX+1 seeds need to be able to make millions of copy's of there initial DNA sequence to be come seeds so it's a really arbitrary cutoff in that they can multiply millions but not billions of times. Which would happen if the GX plants where left alone.

fleitz 14y ago
Hopefully this case eventually involves the Ship of Thessus. Given that the DNA in the G1 seeds undergoes repair, it's quite likely that the original G1 seeds no longer actually contain the original molecules. Also when the seed cells split their DNA some of the original DNA stays with the first cell and some with the second. Given these fundamental questions of identity it's hard to say what is the G1 seed and what is the G2 seed.