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The Courts Patents

Supreme Court Rules For Monsanto In Patent Case 579

Posted by samzenpus
from the all-your-seeds-are-belong-to-us dept.
Pigskin-Referee writes in with news of the Supreme Court's decision in a dispute between Monsanto and an Indiana farmer over patented seeds. "The Supreme Court has sustained Monsanto Co.'s claim that an Indiana farmer violated the company's patents on soybean seeds that are resistant to its weed-killer. The justices, in a unanimous vote Monday, rejected the farmer'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. Justice Elena Kagan says a farmer who buys patented seeds must have the patent holder's permission. More than 90 percent of American soybean farms use Monsanto's 'Roundup Ready' seeds, which first came on the market in 1996."
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Supreme Court Rules For Monsanto In Patent Case

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  • by Fallen Kell (165468) on Monday May 13, 2013 @12:35PM (#43711287)
    The simple matter is that the farmer's recourse is to now sue the seller (operator of the grain elevator), for selling seeds he is not authorized to sell, resulting in damages xzy as stipulated in the costs of the lawsuits the farmer had to defend itself against.
    • Re: (Score:3, Insightful)

      by click2005 (921437) *

      How much would you bet that after losing to Big Asshole Corporation #1 he probably wont have the money for a lengthy court battle with Smaller Asshole Corporation #2?

    • by berashith (222128) on Monday May 13, 2013 @12:41PM (#43711359)

      I was wondering why Monsanto didnt sue the elevator instead. Obviously sueing your distributor and claiming they have no right to sell is a short sighted activity, but they are the ones who violated the contract. I just cant wrap my head around the concept that you can purchase something not under contract, that someone else can then come along and sue you for having purchased under incorrect terms.

      I guess the car analogy is that if you buy a stolen car, you are in possession of a stolen vehicle , but the real wrong doer is the guy selling 50 stolen cars on his used car lot.

      • I guess the car analogy is that if you buy a stolen car, you are in possession of a stolen vehicle , but the real wrong doer is the guy selling 50 stolen cars on his used car lot.

        But in that case you do have to forfeit the stolen vehicle, so you are out the money that you paid for it. I guess the thinking is that he has to pay back any profits he made? I don't agree with the decision or the lawsuit, but the car analogy is not that different.

        • by pepty (1976012) on Monday May 13, 2013 @01:00PM (#43711605)
          The car analogy is: you buy a used (not stolen) Toyota, pull it apart to make molds of the bodywork and parts etc, and then start manufacturing and selling Toyotas.
          • by The Rizz (1319) on Monday May 13, 2013 @01:29PM (#43712025)

            The car analogy is: you buy a used (not stolen) Toyota, pull it apart to make molds of the bodywork and parts etc, and then start manufacturing and selling Toyotas.

            No, the car analogy is that the Toyota you bought starts making copies of itself. Unsure what else to do, you eat them (?). Then, Toyota (the company, not the car) comes to your house and rapes you for violating their patents on eating cars.

            • by pepty (1976012) on Monday May 13, 2013 @01:52PM (#43712309)
              To continue the analogy Toyota only sued you after you started farming Toyotas: you put your toyota in a field full of scrap metal and plastic feedstocks, fed it lots of energy, culled all of the Hyundais that appeared amongst the Toyotas, and then sold some of your new Toyotas and kept the rest to make even more.

              If you had just driven it around and hadn't hit the "copy myself" button: no infringement.

            • by Anonymous Coward on Monday May 13, 2013 @04:05PM (#43713627)

              No, the car analogy is that the Toyota you bought drives past a Honda and gets some of the exhaust residue on it. Then the guys from Honda come around, swab your car, say that it tests positive for being a Honda, and rape you over the table.

              The seeds he bought weren't Monsanto seeds, they had just been pollinated (contaminated) by Monsanto plants that were upwind. The Monsanto genetic pollen is now all over his field, and any new soy beans he plants will have the Monsanto genetic fingerprint, meaning he will never be able to buy another brand ever again.

              I think an enterprising lawyer should partner up with a genetic testing company and go around to the small farmers to test their seeds before they plant to certify them as Monsanto GM free. Then periodically test the plants throughout the season, and as soon as any sign of Monsanto contamination shows up, sue Monsanto and every farmer within 30 miles that uses Monsanto seed for environmental contamination and plant rape.
              Huge class action damages here.

      • by Endo13 (1000782) on Monday May 13, 2013 @12:47PM (#43711431)

        They didn't sue the elevator because they did nothing wrong. They were selling the soybeans for 'feed, milling, and other uses'. Not for seed to be planted. You really can't do anything else useful with soybeans, so there you go.

        • by Roger W Moore (538166) on Monday May 13, 2013 @05:05PM (#43714217) Journal

          They were selling the soybeans for 'feed, milling, and other uses'. Not for seed to be planted.

          Well clearly Monsanto need to add DRM to their seeds because we can't have people buying seeds and then using them in an unlicensed fashion. I suppose the method that would work best in this case is to install a root kit.

      • by pepty (1976012)

        I was wondering why Monsanto didnt sue the elevator instead.

        The grain elevator didn't do anything wrong. This wasn't decided based on the licensing agreement, which in any case the grain elevator never signed. The farmer lost because he made and marketed replicas of patented items.

      • by MobyDisk (75490)

        I just cant wrap my head around the concept that you can purchase something not under contract, that someone else can then come along and sue you for having purchased under incorrect terms.

        That's how patents work. They go even further than your example does: If you independently re-invent that something, you still can't sell it without violating the patent.

      • by jklovanc (1603149) on Monday May 13, 2013 @01:48PM (#43712267)

        I just cant wrap my head around the concept that you can purchase something not under contract, that someone else can then come along and sue you for having purchased under incorrect terms.

        The issue is not in the terms of purchase but in the lack of license to create new instances of the patented item. When Monsanto, or affiliate, sells seeds to a farmer they license the farmer to produce new instances of the patented item from those seeds in one growing season. After that season they have no license to create new instances of the patented item. If the farmer saves some of the crop and plants them in subsequent seasons any crops generated from those seeds are now unlicensed copies of a patented item.

        The crux of the situation is that one can sell properly licensed copies of patented items, as the elevator operator did, but can not create new copies of a patented item without a license, as the farmer did.

    • by Endo13 (1000782) on Monday May 13, 2013 @12:44PM (#43711403)

      Actually, no.

      From TFA:

      He went to a grain elevator that held soybeans it typically sells for feed, milling and other uses, but not as seed.

      Nothing indicates that they sold him the soybeans to be planted. They sold them for feed, milling, or other uses, but he decided to plant them instead.

      Which to me just highlights how bad it is to allow something self-replicating (like plant seeds) to be patented. You can buy the seeds and grow the plants, but the 'fruit' you get from the plants (which are just new seeds) you're not allowed to plant. Frankly, it's stupid IMO, and one more reason patent law needs a major overhaul.

    • by ShanghaiBill (739463) * on Monday May 13, 2013 @12:47PM (#43711443)

      The simple matter is that the farmer's recourse is to now sue the seller (operator of the grain elevator), for selling seeds he is not authorized to sell

      Wrong. Because the farmer wasn't sued for planting and growing the seeds. That was NOT the issue in this case, although you would be led to believe it was by the crappy Slashdot summary. The issue was that Bowman (the defendant):
      1) Bought seeds that were mostly Roundup Ready
      2) Planted them
      3) Sprayed the crop with glyphosate (the herbicide in Roundup) to kill the non-GMO plants
      4) Saved the resulting 100% pure RR beans, and planted them the following year
      This was a case of blatant, intentional infringement. Bowman deliberately concentrated the RR gene, and benefited from it by spraying with glyphosate (which would kill non-RR bean plants). Bowman openly admitted that this was what he did. His defense was not "I didn't do it", but rather "I have a right to do it". Well the Supreme Court unanimously disagreed. If he had simply bought the bean seeds, and grown them without herbicides, there would have been no issue.

       

      • by houghi (78078)

        Bit like you can't do what you like with your phone once you buy it.

        • by dywolf (2673597) on Monday May 13, 2013 @04:14PM (#43713719)

          So change the law.

          It may be dumb. we may all disagree with it. But the court made the right decision for the case at hand. the job of SCOTUS is to interpret the laws as written, not write laws themselves or fix them to how they should be. in this case SCOTUS made a limited finding in favor of monsanto. now whether we agree with the farmer that he should have been able to do it or not, is a seperate issue. as the law stands, what he did was against it (the law) and he knew it.

          unfortuantely right now patent aw is largely a one size fits all arena. and if we want to fix that, then we need to fix the laws behind it.

      • by Frobnicator (565869) on Monday May 13, 2013 @01:16PM (#43711829) Journal

        Most notable is the last paragraph of the court's ruling:

        Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances. In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct.

        If he didn't use the pesticide he probably would have been fine. Since various sources said about 90% of the beans would be GMO-infected he could simply have planted the seeds directly and would have had a much stronger defense.

        And of course, the court left the more thorny issues open for a future lawsuit.

        • by pepty (1976012)
          Kagan emphasizes the purpose: "to make and market replicas of them", but does not mention whether taking extra steps to ensure fidelity of the final product was necessary for infringement. Would a final product that was still 81% pesticide resistant (punnett cross for 90% of the starting seeds being RR, I really don't have a clue what to expect though) be a good enough replica to be infringing?

          Maybe.

    • by Jabrwock (985861)
      It likely won't work, as the elevator was selling the other seed as feed, not for planting. The farmer was banking on getting RR seed, because he knew the elevator didn't care what kind of seed went into the stuff for "feed/milling/etc".

      He was trying to argue that first sale doctrine means the patent can't tell him he can't use the cheap seed for planting. Which is true. But the patent still applies because he can use the seed to grow more seed, and he knew it.

      This isn't a case of a farmer's crop being cro

    • He was trying to use patent law to void a contract. The ruling clearly states he would not found himself in trouble if he was using the seeds for his own use, but instead he bought seeds counting on the fact that some would have the anti-Round up gene.

      Read the NYT article http://www.nytimes.com/2013/05/14/business/monsanto-victorious-in-genetic-seed-case.html?_r=0 [nytimes.com]

  • Not a good case (Score:4, Insightful)

    by bjdevil66 (583941) on Monday May 13, 2013 @12:40PM (#43711345)

    As much as the idea of patented seeds is ridiculous and dangerous (IMO), this particular argument wasn't going to fly.

    The more important part of the decision (FTA): "But Kagan said the court's holding only "addresses the situation before us."" There was no wider ruling on whether seeds are patentable as IP or anything sweeping like that.

    • by TubeSteak (669689)

      I agree that it was a bad test case (good for Monsanto though).
      The complication is that he bought grain elevator seeds once and then saved/replanted them for 8 years.
      That seems like much less of a grey area than if he had kept buying them from the grain elevator every year.

    • Re:Not a good case (Score:5, Informative)

      by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Monday May 13, 2013 @01:20PM (#43711883) Homepage Journal

      As much as the idea of patented seeds is ridiculous and dangerous (IMO), this particular argument wasn't going to fly.

      The more important part of the decision (FTA): "But Kagan said the court's holding only "addresses the situation before us."" There was no wider ruling on whether seeds are patentable as IP or anything sweeping like that.

      Though true, it's also a pretty good implication that seeds are patentable as IP, because patent ineligibility would be something the Supreme Court could raise sua sponte (deciding an issue on their own initiative, as opposed to merely deciding issues addressed by the lower court).

  • by WillAdams (45638) on Monday May 13, 2013 @12:51PM (#43711491) Homepage

    The organic farmer selling non-GMO crops who sues for damages 'cause his plants are cross-pollenated by a neighboring farmer using GMO seeds who doesn't follow the guidelines for planting a barrier row of non-GMO plants around the edges of his field.

  • How far does it go? (Score:5, Interesting)

    by forand (530402) on Monday May 13, 2013 @01:24PM (#43711967) Homepage
    I agree with the other posters that THIS case certainly seems like the defendant was trying to avoid paying for a copyrighted good. However, what I don't understand is that a seed differs from most other copyrighted works in a very special way: it is self replicating. It would be as if I made a useful piece of software that sends out copies of itself to random people (aside from its useful part). Then when I found someone who was using one of the copies it sent out I would sue them. This sounds like how the RIAA would upload songs to torrent sites then sue the people who downloaded them. How is this reasonable? Sure Monsanto has a patent on the genes (something I also disagree with) in the seed but it is putting those genes into a product which spews itself out into the world. Shouldn't a patent/copyright holder hold some responsibility for not disseminating their own product?
  • by Anonymous Coward on Monday May 13, 2013 @01:53PM (#43712331)

    I am not clear on this farmer’s specific case, but Monsanto has lost all rights to protect its patent on any seeds that it allowed to be planted in a non-environmentally control environment, AKA outdoors. Our legal system cannot supersede the basics facts of nature.

    If you allow your patented seeds to be planted out doors and allow their pollen to escape freely into the wind, you have no right to tell anyone that they have no right to use seeds produced from their own non-Monsanto plants that happened to have been inadvertently pollenated by Monsanto’s insufficient processes and out right failure to adequately protect its own patent. At best the only recourse that Monsanto has is to fully compensate the lost seed and potential crop of any person that has seeds of this kind in exchange for destroying them.

    Monsanto cannot legally protect a patent for seed that they have knowing allowed and opening allowed to enter the world’s ecosystem. There are forces there that no court has the juristiction to control. This is not as simple as returning a lost bag of money found on the side of the road. This is Mother Nature doing what it does. Monsanto is aware of this issue and knows how to protect their patent by only allowing their seeds to be planted inside environmentally controlled green houses. This is a failure on their part to protect their patent.

    By the way Monsanto did not create the genes that make this seed resistant. They genes came from another public plant that anyone can own. All they truly should have been allowed to patent was the process of adding the genes to the soybean. They don’t own the genes; and no court has the authority to give the sole right to use the genes to anyone entity. The genes are publicly owed when in the original plant or any other plant that nature choses.

  • by Anonymous Coward on Monday May 13, 2013 @02:18PM (#43712629)

    Sorry, but the patent only applies to the seed made/raised by Monsanto.

    Once it's been through a single planting / harvesting - it is no long the exact same seed - mutations have set in.

    Unless it is 100% genetically identical to the seed sold by Monsanto, whether or not it carries the RR gene sequence is irrelevant - the patent applies to the entire gene sequence, not just the bit that makes it RR.

    So once a single dna chain is modified (ie through natural selection) - it is no longer the patented product.

    End of story.

    The judges are WRONG.

    • Re: (Score:3, Funny)

      by Anonymous Coward

      Just to clarify this a little more.

      Monsanto claiming that they own the patent on the seed after it's gone through a generation of mutations, is akin to a prosecutor stating that xyz female is guilty of a crime committed by abc male because their DNA is 90+% matching.

      With that low level of dna matching, a bonobo could be brought to trial because their DNA is over 90% identical to that of a human.

  • by Richy_T (111409) on Monday May 13, 2013 @02:26PM (#43712723) Homepage

    Whilst it is apparent that this farmer was deliberately circumventing the patent in this case, if one were to wish to produce a roundup-ready crop "naturally", this would be exactly the way it would be done. Unfortunately, because of Monsanto, it would be a lot harder to do than without as now you have to compensate for the possibility of contamination.

  • by FeatherBoa (469218) on Monday May 13, 2013 @02:34PM (#43712809)

    The ruling is here:
    http://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf [supremecourt.gov]

    It's not too long and is interesting. Read it before complaining too much.

  • patent expires soon (Score:5, Informative)

    by stenvar (2789879) on Monday May 13, 2013 @03:18PM (#43713193)

    Turns out, the patent expires soon. Monsanto seems to be pretty reasonable about it:

    http://www.monsanto.com/newsviews/Pages/roundup-ready-patent-expiration.aspx [monsanto.com]

    After patent expiration, you can use the old soybeans royalty free. Or you can choose the newer, higher-yield varieties they have constructed since (and that will themselves expire at some point).

    Seems to me the patent system here is actually working as it should.

  • by erroneus (253617) on Monday May 13, 2013 @04:30PM (#43713889) Homepage

    Monsanto's monoculture crop is a global disaster waiting to happen. The first disease that comes along which has evolved to target Monsanto's GM plants will wipe out a HUGE portion of the world's food supply.

    But what if some human disease was engineered and passed around the globe in an epidemic which rendered people allergic to Monsanto's GM crops? Now we've got a world of useless and even dangerous plants which are essentially out of control.

    And to top it all off? You might be able to sue all the sick people who contract the disease! :) Did you forget to patent the genetic material of your new disease?

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