4 ms·

I wonder if this says anything about the ruling we can expect from the court on the Myriad Genetics case. The New York Times summary implied that the farmer in

by mjt0229 13y ago

I wonder if this says anything about the ruling we can expect from the court on the Myriad Genetics case. The New York Times summary implied that the farmer in question had some knowledge that he was using seeds in a way that might infringe, if you buy the argument that organisms can be patented. I don't love that argument, but the possibility of knowing infringement complects the case somewhat. However, I'm somewhat comforted by the expressed limitation in the ruling, that it pertains to this case only. In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed.

bostonpete 13y ago
> In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed. I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.
- mjt0229 13y ago
  Yeah. I wonder if this was not the right test case.
  - Shivetya 13y ago
    Considering the agreement he had signed if anything it was an interesting attempt to vacate that agreement. As in, he attempted the "Patent exhaustion" (first sale) as a means to circumvent paying to use a product. Since there are patent unencumbered varieties available I think its a good decision. edit: read the NYT article which has further comments by the court, http://www.nytimes.com/2013/05/14/business/monsanto-victorious-in-genetic-seed-case.html?_r=0 http://www.nytimes.com/2013/05/14/business/monsanto-victorio...
  - trothoun 13y ago
    In this case, he sprayed the crop grown from the seed bought from the grain elevator with roundup. This is how everyone knew that it was in fact roundup ready. It would be interesting to see a case where The seed were used as if they were conventional soybeans, especially if the farmer didn't know that they contained patented genes. According to my (inexpert) reading of the opinion, it wouldn't matter and the result would have been the same. But maybe there are other defenses that could have been employed if the facts were different. Certainly the policy argument would look a lot different, even if the legal argument remained the same.
    - yaddayadda 13y ago
      https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmei... I believe this is the closest case, yet, to that scenario.
- msandford 13y ago
  I don't have any problems impugning it at all. They had an opportunity to reject the notion that organisms are patentable (which they are not given that there is a billion years of prior art) and they ruled resoundingly for the case of corruption and Monsanto. Some of the stuff at this URL is overly-inflammatory but it gives you a reasonable picture of why the supreme court would rule the way it did. http://www.whale.to/a/monsanto_revolving_door.html http://www.whale.to/a/monsanto_revolving_door.html
  - tbrownaw 13y ago
    They had an opportunity to reject the notion that organisms are patentable Did they really? My understanding is that they would only be able to do this if Mr Bowman had tried to challenge the validity of the patent on that grounds. While the link to the decision is broken, the article makes no mention of him arguing against the validity of the patent at all.
    - pdabbadabba 13y ago
      Right. And that's because the patentability of a seed or plant was decided by SCOTUS in 2001 in J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124 (2001). People who keep hoping for a ruling from SCOTUS that organisms aren't patentable are living in the past.
    - msandford 13y ago
      The supreme court routinely reaches all kinds of weird decisions based on questionable legal precedent and theory. For them to be so careful to not overstep here is suspect.
      - bostonpete 13y ago
        I'm going to assume that anyone who thinks a unanimous decision by the Supreme Court is "suspect" has a lifetime supply of tin foil hats in their bunker.
        13y ago
dnautics 13y ago
plant patents are a specific type of patent. I am not a fan of Monsanto, Kagan (Kagan implied that the monsanto opinion would not necessarily apply to other self-replicating entities - also correct), or patents in general, but I think this judgement is correct. Congress has broad authority to define and determine what constitutes intellectual property, and it's fairly clear exactly what is protected, and why, in plant patents. Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates. The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.

by mjt0229 13y ago

bostonpete 13y ago

> In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed. I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.

mjt0229 13y ago
Yeah. I wonder if this was not the right test case.
- Shivetya 13y ago
  Considering the agreement he had signed if anything it was an interesting attempt to vacate that agreement. As in, he attempted the "Patent exhaustion" (first sale) as a means to circumvent paying to use a product. Since there are patent unencumbered varieties available I think its a good decision. edit: read the NYT article which has further comments by the court, http://www.nytimes.com/2013/05/14/business/monsanto-victorious-in-genetic-seed-case.html?_r=0 http://www.nytimes.com/2013/05/14/business/monsanto-victorio...
- trothoun 13y ago
  In this case, he sprayed the crop grown from the seed bought from the grain elevator with roundup. This is how everyone knew that it was in fact roundup ready. It would be interesting to see a case where The seed were used as if they were conventional soybeans, especially if the farmer didn't know that they contained patented genes. According to my (inexpert) reading of the opinion, it wouldn't matter and the result would have been the same. But maybe there are other defenses that could have been employed if the facts were different. Certainly the policy argument would look a lot different, even if the legal argument remained the same.
  - yaddayadda 13y ago
    https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmei... I believe this is the closest case, yet, to that scenario.
msandford 13y ago
I don't have any problems impugning it at all. They had an opportunity to reject the notion that organisms are patentable (which they are not given that there is a billion years of prior art) and they ruled resoundingly for the case of corruption and Monsanto. Some of the stuff at this URL is overly-inflammatory but it gives you a reasonable picture of why the supreme court would rule the way it did. http://www.whale.to/a/monsanto_revolving_door.html http://www.whale.to/a/monsanto_revolving_door.html
- tbrownaw 13y ago
  They had an opportunity to reject the notion that organisms are patentable Did they really? My understanding is that they would only be able to do this if Mr Bowman had tried to challenge the validity of the patent on that grounds. While the link to the decision is broken, the article makes no mention of him arguing against the validity of the patent at all.
  - pdabbadabba 13y ago
    Right. And that's because the patentability of a seed or plant was decided by SCOTUS in 2001 in J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124 (2001). People who keep hoping for a ruling from SCOTUS that organisms aren't patentable are living in the past.
  - msandford 13y ago
    The supreme court routinely reaches all kinds of weird decisions based on questionable legal precedent and theory. For them to be so careful to not overstep here is suspect.
    - bostonpete 13y ago
      I'm going to assume that anyone who thinks a unanimous decision by the Supreme Court is "suspect" has a lifetime supply of tin foil hats in their bunker.
      - 13y ago

dnautics 13y ago

plant patents are a specific type of patent. I am not a fan of Monsanto, Kagan (Kagan implied that the monsanto opinion would not necessarily apply to other self-replicating entities - also correct), or patents in general, but I think this judgement is correct. Congress has broad authority to define and determine what constitutes intellectual property, and it's fairly clear exactly what is protected, and why, in plant patents. Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates. The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.