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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.


Reader Comments (rss)

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  1.  
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    Atkray (profile), Sep 27th, 2011 @ 10:24am

    Not to worry, I just saw on the news recently that congress had passed legislation to fix the broken patent system so I'm sure this farmer will be vindicated.

    Oh never mind...

     

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  2.  
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    Scote, Sep 27th, 2011 @ 10:24am

    The plant itself infringed on the patent, not the farmer.

    With patents, if you build a patented device you can be sued for infringement. With plant seeds, the person who plants them isn't building anything. The plant is self assembling, and self-propagating. The plant itself is the infringer, not the farmer. Monsanto needs to sue its own plants for violating Monsanto's patents, not the farmer.

     

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  3.  
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    DH's Love Child (profile), Sep 27th, 2011 @ 10:32am

    I need a chiropractor

    to fix me from this twisted logic...

     

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  4.  
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    Anonymous Coward, Sep 27th, 2011 @ 10:36am

    Can a judge be bought?

    Anyone with close knowledge of the courts in south Florida that handle drug cases know that they can be, and have been.

    Any reasonable person, seeing rulings as genuinely bizarre as this one, must wonder how much (hypothetically, of course) it would cost to buy a federal judge.

    Such a reasonable person might also consider Monsanto's determination to win these cases and the amount of money Monsanto has spent to do so in the past, and one might reasonably wonder what they would not do to win.

     

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  5.  
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    Chronno S. Trigger (profile), Sep 27th, 2011 @ 10:37am

    Re: The plant itself infringed on the patent, not the farmer.

    The plant isn't infringing, the plant is doing exactly what Monsanto designed it to do. The plant was designed to produce food and spit out seeds.

    How does one sue a person for patent infringement for using the item exactly as stipulated in the patent? At best I would say a TOS or EULA violation.

     

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  6.  
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    PlagueSD (profile), Sep 27th, 2011 @ 10:45am

    Wait...You can patent SEEDS????


    /mindboggle

     

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  7.  
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    Ninja (profile), Sep 27th, 2011 @ 10:46am

    In Corporate America Monsanto plants YOU.

    Too much power in the corporate hands. Too much.

     

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  8.  
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    :Lobo Santo (profile), Sep 27th, 2011 @ 10:47am

    Re: Re: The plant itself infringed on the patent, not the farmer.

    Yes, in fact on every seed there's a microdot that reads:
    "By planting this seed you agree to the following terms of service: (...etc)"

    ;-P

     

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  9.  
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    ramjet57 (profile), Sep 27th, 2011 @ 10:54am

    Re: Can a judge be bought?

    Bought,paid for and owned completely. If Monsanto were in the recording business then even the RIAA would be ashamed of them.

     

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  10.  
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    Anonymous Coward, Sep 27th, 2011 @ 10:57am

    Farmers should all gang up on Monsanto to drive them out of business they won't have to put up with this crap. Patent trolls have gotten together before and simultaneously filed 50+ individual lawsuits against the same targets to put them out of business and pressure them into settling bogus charges.

    Thousands of farmers should do the same thing to Monsanto, simultaneously each filing bogus lawsuits against Monsanto to bankrupt them.

     

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  11.  
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    Anonymous Coward, Sep 27th, 2011 @ 10:58am

    And yet another study looks at the harms of NPE's.

    http://www.bu.edu/law/faculty/scholarship/workingpapers/Bessen-Ford-Meurer-troll.html

    N ow Monsanto is just priceless, they set the bar for corruption.

    I do wonder why no farmer has sued Monsanto for loss of earnings because their crops got contaminated by round-up ready seeds.

     

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  12.  
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    Vincent Clement (profile), Sep 27th, 2011 @ 10:59am

    Just remember that patents and copyrights are supposed to protect the so-called "little guy", or that is what the IP-maximalists keep telling us. Monsanto is hardly a little guy.

     

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  13.  
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    Liz (profile), Sep 27th, 2011 @ 11:02am

    Monsanto is a dirty word in the Midwest.

     

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  14.  
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    Fraser.Dk (profile), Sep 27th, 2011 @ 11:03am

    Monsanto needs a stake through the heart

    The patent system may be broken, but Bowman is a tool for dealing with those GMO-peddling psychopaths in the first place.

     

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    HuwOS (profile), Sep 27th, 2011 @ 11:03am

    Re:

    But the seeds are tiny

     

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  16.  
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    Mike Masnick (profile), Sep 27th, 2011 @ 11:05am

    Re: Can a judge be bought?

    Eh. While there may be some corrupt judges out there, I'd say this line of argument is a dead-end and makes people look like tinfoil hat wearers. Politicians are much more likely to be corrupt. Judges, for the most part, are not. The idea that a decision like this was "bought" just doesn't pass the sniff test.

     

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  17.  
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    HuwOS (profile), Sep 27th, 2011 @ 11:09am

    Re:

    To be fair that's only part of the truth.
    It's actually a dirty word globally.

     

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  18.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:10am

    Re: Re: Can a judge be bought?

    So Mike, you're saying the judge is incompetent? Or was he just on new meds this particular day? Maybe he mended his broken gavel with fancy glue?

     

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  19.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:11am

    This is like the analog version of downloading and copying music. Maybe we should apply the 3 strikes rule to farming as well. Get accused of infringing on seed patents 3 times and get cut off from the sun...

     

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  20.  
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    Scote, Sep 27th, 2011 @ 11:15am

    Because Monsanto has no shame. They actually sue the farmers who's fields they contaminated with GMO pollen for patent infringement--and **win**. It is a complete travesty of justice.

     

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  21.  
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    Chuck Norris' Enemy (deceased) (profile), Sep 27th, 2011 @ 11:17am

    Re: Re: The plant itself infringed on the patent, not the farmer.

    So...Monsato is promoting infringement? =]

     

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  22.  
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    MAC, Sep 27th, 2011 @ 11:19am

    Re: Re: Can a judge be bought?

    Question for you: Are judges human?
    Yes.
    Do humans have a proclivity for 'putting themselves first'?
    Yes.
    Do you think some judges would exercise this proclivity at the expense of ethics?

    Now, you answer the question...

     

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  23.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:20am

    I used to work for a Monsanto agency

    Agency's working for Monsanto have quotas for seed sales or lose the license to sell them. If they fail to meet sales quotas, then the only way to make up for it would be by reporting offenders that are using "stolen" seeds.

    Standard MO for my employers was to offer seed to the local farmers. if a farmer rejected our offer, then we would sneak into their fields at night just after planting time, and scatter Monsanto seeds around the field.

    Then, if we failed to make quota, we could "report" the seed use to our bosses so the farmer could be sued

     

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  24.  
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    Vincent Clement (profile), Sep 27th, 2011 @ 11:26am

    Re: Re:

    Touche.

    But are seeds "people"?

     

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  25.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:27am

    Re: I used to work for a Monsanto agency

    So you are a person of no morals or ethics? Cause if you were you would have blown the whistle on this and quit working for thieves...

     

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  26.  
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    Pixelation, Sep 27th, 2011 @ 11:30am

    Re: I used to work for a Monsanto agency

    If what you say is true, what are you going to do to correct it?

     

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  27.  
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    sumquy (profile), Sep 27th, 2011 @ 11:43am

    Re: I used to work for a Monsanto agency

    i call bullshit on this one. whether true or not, that is not a comment, it is an allegation. as mike pointed out in the previous post, anonymous absolutely has a place in almost any discussion, but you, ac, are abusing it, and are exactly the reason, so many otherwise intelligent people, have such a hard time accepting it as legitimate.

     

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  28.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:52am

    I "used" to work for them. My job was just a delivery grunt.

    I only found out what was happening when I was asked to drive one of the salesreps out to the fields one night when the regular guy was sick. The rep bragged to me about what he was doing, and that's how I found out.

    When I quit a few days later, I got called into the office by the rep I drove, who told me to keep my mouth shut or else I'd get charged for theft from the company.

    "We're Monsanto. The cops here will do anything we tell them to do. We can make enough evidence to put you in jail."

    I'm a licensed driver with clearance to drive secured loads. There is no doubt in my mind they can and will destroy me if they want to.

     

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  29.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:54am

    Re:

     

    reply to this | link to this | view in thread ]

  30.  
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    Anonymous Coward, Sep 27th, 2011 @ 12:01pm

    Re: Re: Can a judge be bought?

    Eh. While there may be some corrupt judges out there, I'd say this line of argument is a dead-end and makes people look like tinfoil hat wearers.

    "Tinfoil hat wearers" are your prime audience, Pirate Mike.

    The idea that a decision like this was "bought" just doesn't pass the sniff test.

    Your comment that this somehow shows "how horribly broken the patent system is" doesn't even pass the laugh test. I know you're writing for the intellectually-incapable, but if you have an argument then make it. Tell us exactly what's wrong with the system and how you propose to fix it. Otherwise, you're just a sensationalist, idiotic hack.

     

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  31.  
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    Chargone (profile), Sep 27th, 2011 @ 12:02pm

    Re:

    heh. the farmers in india actually Revolted over similar nonsense a few years back.

    need a bit more of that.

     

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  32.  
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    Prisoner 201, Sep 27th, 2011 @ 12:04pm

    Re: Re: Re:

    Little people.

     

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  33.  
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    Chargone (profile), Sep 27th, 2011 @ 12:08pm

    forget all the nonsense about sales and resales and liscences and what have you, the fact that the transaction goes beyond 'we have seeds. you want seeds. you have money, we want money. you give us money, we give you seeds. deal is done' in the first place is an utter nonsense.

    they're bloody SEEDS.

    if nothing else, they're naturally self replicating. attempting to write contracts saying they shouldn't is about as intelligent as contracts saying fish shouldn't swim, and if the farmer is doing the labour, and the thing is growing on his land, why should he not sell the result? he bought seed, he used seed, the end result was more seed, which was then used and/or sold.

    gah.

    forget the logic of the ruling, the logic of a system that allows the situation to arise in the first place is bad enough that the best solution to the problem involves judicious use of artillery.

     

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  34.  
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    Prisoner 201, Sep 27th, 2011 @ 12:12pm

    Re: Re: I used to work for a Monsanto agency

    No, being anonymous (and lacking references) just means that the credibility score for his comment is very low.

    Or are you seriously saying that you think readers may think the comment section on this (or any) site represents the undiluted truth, and would take some rash and unadviced action because of it?

    In that case, that is more a problem with the reader than the poster. Or possibly the edcucational system. Or both.

     

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  35. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Sep 27th, 2011 @ 12:15pm

    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.

    LMAO! Jesus, chubby. You really are the King of the Tinfoil Hat Wearers. You read one case that you don't like (and I'm guessing don't actually understand), and you think that's proof positive that the whole patent system is broken. Add to that the conspiracy theory nonsense about the CAFC and Congress, and I'm rolling the on the floor laughing. Classic, Pirate Mike. Classic.

     

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  36.  
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    Anonymous Coward, Sep 27th, 2011 @ 12:19pm

    Re: Re: Re: Can a judge be bought?

    -1 trolling.

    Or do you not believe that genes are a product of nature?

     

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  37.  
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    Anonymous Coward, Sep 27th, 2011 @ 12:22pm

    Re:

    Warning: the above poster is mentally retarded. Reading his post may compromise your mental facilities.

     

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  38.  
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    ramjet57 (profile), Sep 27th, 2011 @ 12:22pm

    Re: Re: Can a judge be bought?

    You obviously hang out with a better class of judges than I do. I will concede it was uncalled for to accuse the judge of such things, for which I apologize, but I stand by my opinion of Monsanto.

     

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  39.  
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    HuwOS (profile), Sep 27th, 2011 @ 12:27pm

    Re: Re: Re: Re:

    Tiny little people who need to be protected from big exploitative farmers who want to bury them and dump manure on them.

     

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  40.  
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    heyidiot (profile), Sep 27th, 2011 @ 12:50pm

    Speaking of manure...

    ...we're wading in it now.

     

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  41.  
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    sumquy (profile), Sep 27th, 2011 @ 12:53pm

    Re: Re: Re: I used to work for a Monsanto agency

    "No, being anonymous (and lacking references) just means that the credibility score for his comment is very low.

    no, what i am saying is that that is not a comment. it is an allegation of felony fraud.

    Or are you seriously saying that you think readers may think the comment section on this (or any) site represents the undiluted truth, and would take some rash and unadviced action because of it? "

    while i sympathize with ac fear of retaliation, what he is describing is accessory to criminal activity. i frequently post here and other places as anonymous, and believe the freedom to be ac is a vital part of any discussion, but imho, this "commenter" needs to put up or shut up.

    what kind of society do we live in if everybody sees who stole my car, but nobody will stand up and give evidence against the thieves, for fear they will "get him"? and that is a very different thing than using ac to put forward an unpopular opinion.

     

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  42.  
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    Almost Anonymous (profile), Sep 27th, 2011 @ 1:16pm

    Wait, let's not skip over it

    """Setting aside the insanity of using patents to tell farmers they can't re-use their own seeds...""" Part A

    Mike, let's not set aside that particular insanity shall we? Because until you can rectify Insanity #1, any further insanities are moot. If you accept Insanity #1, then even more insanity shouldn't bother you!

     

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  43.  
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    gigglehurtz (profile), Sep 27th, 2011 @ 1:17pm

    Re: Re:

    I stopped reading after Jesus, chubby . I don't bother reading comments from anyone who's just being an asshole.

     

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  44.  
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    EM, Sep 27th, 2011 @ 1:18pm

    Re: Re: Re: Re: I used to work for a Monsanto agency

    Perhaps the AC is doing that through other channels. Revealing oneself on a blog would not be smart either way. Corporate espionage, including discreditation, financial ruin, or even homicide, is a valid concern with a company as corrupt and unethical as Monsanto.

     

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  45.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:22pm

    I find this argument uncompelling

    Monsanto counters that licensed growers’ sales of sec-ond-generation seeds to grain elevators as commodity seeds did not exhaust Monsanto’s patent rights in those seeds “[b]ecause of the express condition [in the Technol-ogy Agreement] that the progeny of licensed seed never be sold for planting.” Appellee Br. 32. According to Mon-santo, “a grower’s sale of harvested soybeans to a grain elevator is not an ‘authorized sale’ when it results in those soybeans subsequently being planted.”


    It's not a commodity if it's use can be differentiated from other commodities sold with the same label.

    Can you imagine buying barrels of oil on the open market, only to find that the particular barrels you bought are not allowed to be turned into diesel.

     

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  46.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:41pm

    Don't sell self-replicating machines if you don't want them used

    “The fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology. Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.”

    Then don't make a self-replicating invention! If you sell me a robot that will make patent-violating copies of itself if I drop it on the ground, then I think that's should be the inventors problem, not mine.

     

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  47.  
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    Anonymous Coward, Sep 27th, 2011 @ 2:53pm

    And if I fertilize a farm with the BS Monsanto unloaded in court, will I be infringing too?

     

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  48.  
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    JMT (profile), Sep 27th, 2011 @ 3:23pm

    Re: Re: Re: Can a judge be bought?

    "Tell us exactly what's wrong with the system and how you propose to fix it. Otherwise, you're just a sensationalist, idiotic hack."

    This blog is chock full of articles explaining what's wrong with the patent system and suggestions for improving it, and you know this because you regularly pollute those articles with comments like this.

     

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  49.  
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    Terard, Sep 27th, 2011 @ 5:29pm

    What's next?

    What's next? Patent infringing babies?

     

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  50.  
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    Any Mouse (profile), Sep 27th, 2011 @ 5:31pm

    Re: Re: Re: Can a judge be bought?

    Do you think some judges would exercise this proclivity at the expense of ethics?

    Now, you answer the question...


    And Mike answered that:

    Eh. While there may be some corrupt judges out there,

     

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  51.  
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    Markus Hopkins (profile), Sep 27th, 2011 @ 8:00pm

    Monsanto should have gotten nailed on sloppy drafting

    Other problems aside, if we take the patent system as it currently exists, self-replicating technology and all, this decision still looks wrong to me. The decision itself says

    "While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants."

    How does "any other conceivable use" NOT include replication? If Monsanto didn't want to grant a wide open license for sales to grain elevators, they could have. The court doesn't have to rule that the new generation would not be normally infringing and thus "eviscerate" Monsanto's rights, they could have used Monsanto's agreement to show that Monsanto itself structured it's agreement so as to grant permission to "replicate" and thus brought this on itself.

    However, I also second the comments of all former commenters, these are SEEDS, they grow without any intervention; they can get into my field without my knowledge. If Monsanto can rightly restrict what can be done with seeds after the fact (as in this decision), then replanting what I think are actually commodity seeds still leaves me open to an infringement claim, should Monsanto ever suspect their seeds are in my commodity crop. If grain elevators keep lists of who they sell to, and the percentage of Monsanto is really as high as 94%, this is deeply troubling to me.

     

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  52.  
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    Anonymous Coward, Sep 27th, 2011 @ 8:53pm

    Are you surprised Mike? This has been Monsanto's business model for decades. They have no other business model. The stuff they sell isn't exactly exclusive or impossible to make, they just happen to own all the rights to it.

    Soon food is going to be similar to electronic entertainment, easy to make, impossible to get a license to do so.

     

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  53.  
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    Anonymous Coward, Sep 27th, 2011 @ 9:05pm

    Re: Monsanto should have gotten nailed on sloppy drafting

    Persons here seem inclined to view the defendant as a victim. Perhaps they should read the facts of the case recited in the opinion before doing so.

    One of the two patents involved in this matter expires next month, and the other in three years.

     

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  54.  
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    Mr Big Content, Sep 27th, 2011 @ 9:48pm

    Patents Don't Sue People ...

    ... people sue people.

    This kind of thing only happens in places where the politicians try to clamp down on patents. Where people are allowed to own and carry them freely in public, you don't see any patent fights happening at all--everybody is perfectly respectful of each other's Intellectual Property.

    Patents are what has kept us free from having the Government steal our ideas for 300 years. We're not going to give them out without a fight.

     

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  55.  
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    Markus Hopkins (profile), Sep 27th, 2011 @ 10:19pm

    Re: Re: Monsanto should have gotten nailed on sloppy drafting

    Since you wrote in reply to me, I'm going to assume I am one of the "persons" you are referring to. If I am mistaken, persons are welcome to correct me. First, You might have payed attention to the fact that I quoted the opinion directly before mentioning that people should read the facts of the case. I didn't get the quote from techdirt, I pulled it out of the opinion after I read it. Second, defendant does not automatically equal wrongdoer, and plaintiff does not automatically equal victim, as your statement seems to imply (again, persons may correct me...). Based on the merits of the case - as I understand it from reading the opinion - Monsanto wrote a sloppy license, and now wants to take it back. That's not the farmer's fault. He signed the agreement that Monsanto referenced, and adhered to it for all seeds he obtained from them. If he found what appeared to have been (and should have been, see above) a loophole in the rights granted once the seeds are sold to grain elevators, more power to him. That's how contracts work. If they allow you to do something, you are allowed to do it, you don't get barred after the fact because the other party decided it put them in a difficult position. Maybe that grates on your idea of what is fair to the IP owner because of how large a hole that opens, but that's generally how voluntary agreements function, and Monsanto could have easily drafted it differently. I'm guessing they didn't do so because they would have sold less seed in the first place, due to farmers being more careful about allowing mixing to happen, and having an awareness that they would be unable to do anything with the "second-generation seeds."

    Of what relevance is the patents' expiration date? A bad decision is a bad decision, and has lasting impact beyond the present dispute. Also, (again from the opinion, which I read) the farmer's actions go back several years, if you're trying to say this shouldn't matter to the parties, you're wrong there too.

    In reality, you're probably just a troll, but I really couldn't help feeding you. I'm a sucker for being called "person."

     

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  56.  
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    Markus Hopkins (profile), Sep 27th, 2011 @ 10:20pm

    Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    A lot of that was not supposed to be italicized. That's what I get for feeding trolls....

     

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  57.  
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    Anonymous Coward, Sep 27th, 2011 @ 11:00pm

    When your employer does unethical things and you find out many professionals are told to simply quit instead of reporting or whistle blowing. Accountants for example may know the books are cooked, when they figure this fact out they can be faced with a huge ethical dilemma...

    Do I report the company, cause 50-500 people to loose jobs, send the company into bankruptcy etc, or do I walk away and shake my head.

    Assuming the option to do nothing has been exhausted, IE you could go to jail if you continue, Walking away is an accessible answer. Many accountants will take this course of action.

    Lawyers will do something slightly different, if a defendant will lie on the stand, and the lawyer knows this, they can ask to dismiss them selves from the case, usually the judge will thank the lawyer for doing this and ask the lawyer to stay on the case as the lawyer walking away can cause even more damage.

     

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  58.  
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    Mike Masnick (profile), Sep 28th, 2011 @ 12:59am

    Re: Re: Re: Can a judge be bought?

    So Mike, you're saying the judge is incompetent? Or was he just on new meds this particular day? Maybe he mended his broken gavel with fancy glue?

    It's a panel of three judges, not a judge. And, no, I don't think they're "incompetent." I just think that they've been brought up through a system that is completely broken, and even though they have the power to fix things, they let things creep ever worse.

     

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  59.  
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    Mike Masnick (profile), Sep 28th, 2011 @ 1:02am

    Re: Re: Re: Can a judge be bought?

    Your comment that this somehow shows "how horribly broken the patent system is" doesn't even pass the laugh test. I know you're writing for the intellectually-incapable, but if you have an argument then make it. Tell us exactly what's wrong with the system and how you propose to fix it. Otherwise, you're just a sensationalist, idiotic hack.

    Yeah, I've never posted that before.

    http://www.techdirt.com/articles/20110819/14021115603/so-how-do-we-fix-patent-system.shtm l

    In the meantime, you continue to demonstrate how even if someone comments "anonymously," it's quite easy to figure out who they are from the things they say.

    Finished law school yet?

     

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  60.  
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    Chargone (profile), Sep 28th, 2011 @ 3:02am

    Re: Patents Don't Sue People ...

    i'm... really not sure if i should laugh, groan, facepalm, or take to you with a bat for that one :P

     

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  61.  
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    Bergman (profile), Sep 28th, 2011 @ 5:00am

    How exactly does using a legal product (seeds) to do exactly what the product is designed to do (grow plants that produce seeds) add up to patent infringement? The purchaser of the original seeds signed a contract saying they couldn't plant second generation seeds, but that isn't what happened.

    By the standards the court is applying, an actor or model could sue their offspring's spouses for copyright violation, because they are making children that resemble the actor/model! For that matter, in the case of an accidental pregnancy (say, from a broken condom), if the child resembles the parent, the parent could sue the child!

    Would a cease & desist mandate plastic surgery? Would DMCA apply? Get plastic surgery to alter your appearance, or go to prison?!?

     

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  62.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 5:51am

    Re:

    someday, all those things will be true

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 7:53am

    ninja....your spin on the in soviet russia comment made me laugh tough....i made it my facebook status but credited you in a comment....thanks brother....or...sister....

     

    reply to this | link to this | view in thread ]

  64.  
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    Anonymous Coward, Sep 28th, 2011 @ 10:49am

    Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    If I recall correctly (I do not have the case before me), the defendant was accused of patent infringement, and not breach of contract.

    As others have raised in the past, the gravamen of the defense was "patent exhaustion", and in line with at least two other previous cases that served as precedent for this case, the court rejected the defense.

    The case thus devolved to whether or not the defendant had engaged in activities that infringed the "make" and "use" rights associated with the patents before the court. The court answered the question in favor of Monsanto.

     

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  65.  
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    hegemon13, Sep 28th, 2011 @ 11:11am

    Re:

     

    reply to this | link to this | view in thread ]

  66.  
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    hegemon13, Sep 28th, 2011 @ 11:13am

    Re: Re:

    Hit enter too fast. Here's a couple paragraphs from the article:

    "270,000 organic farmers filed a lawsuit in March 30 in an attempt to keep a portion of the world’s food supply organic. The plaintiffs in the case are members of around 60 family farms, seed businesses and organic agricultural organizations.

    Led by the Organic Seed Growers and Trade Association, the suit lashes out at Monsanto to keep their engineered Genuity® Roundup Ready® canola seed out of their farms. Organic agriculturalists say that corn, cotton, sugar beets and other crops of theirs have been contaminated by Monsanto‘s seed, and even though the contamination has been largely natural and unintended, Monsanto has been suing hundreds of farmers for infringing on their patent for incidentally using their product."

     

    reply to this | link to this | view in thread ]

  67.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 11:19am

    Re: Re: I used to work for a Monsanto agency

    Call it BS all you want. It's a known fact they have done this.

     

    reply to this | link to this | view in thread ]

  68.  
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    Markus Hopkins (profile), Sep 28th, 2011 @ 1:55pm

    Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    The defendant was accused of patent infringement, as you stated. The reason I'm framing this as a contract issue is specifically due to the misjudgment of the court on the merits of the patent exhaustion defense. The terms of the deal specifically licensed the seeds "as feed, or for any other conceivable use," and that growing in order to harvest "second-generation" seeds is not only conceivable, but something other parts of the agreement specifically take into account for direct sales from Monsanto. I understand why the court is uncomfortable with extending the exhaustion beyond the current generation of seeds, and that the case law in this area does not allow for such an thing, but in this instance, the license is so broadly worded that this goes beyond the normal limits of exhaustion, specifically because of the language Monsanto chose to use in the agreement with respect to sales made to grain elevators. Granting a license for any use inherently includes production of new seeds when the product being licensed is self replicating. If Monsanto had intended not to allow that, then why have they "twice eschewed any reading of the Technology Agreement to prohibit unrestricted seed sales to grain elevators as a commodity"? A reasonable result of planting is the production of new seed, and restricting that new generation from being used, after claiming that sales are unrestricted is an absurd result.

     

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  69.  
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    Anonymous Coward, Sep 28th, 2011 @ 2:29pm

    Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    I believe what underlies your comment is the provision in contracts for sales of the seeds that second generation seeds can be sold to grain elevator companies as a "commodity".

    This is not a provision with which I have ever dealt, so how it fits into the overall "equation" is not immediately apparent to me. However, I do understand the reasoning behind the court's opinion regarding self-replicating materials such as seeds. To hold otherwise would be tantamount to declaring that the patent was no longer of any force and effect immediately after the sale of the first bag of seed to a customer.

    You do, however, raise a very valid point, and I have asked a colleague at Monsanto if he might be able to shed some light on the provision for my personal benefit.

     

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  70.  
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    Markus Hopkins (profile), Sep 28th, 2011 @ 3:47pm

    Re: Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    I agree with your assessment regarding the court's opinion on self-replicating materials. I was attempting to say that I believe allowing a patent on such things, as opposed to the process that leads to the original creation (ie, the method of inserting DNA) is a troubling aspect of the patent system, for the reasons stated by many other commenters, and many people elsewhere (eg, if Monsanto finds a crop based on their seed, it doesn't matter if the wind blew it onto your farm, you are guilty of infringement). Under our current system, I understand Monsanto patenting the process for inserting genetic material, if it is a patent worthy process, but not over the continued use of the seed line (although potentially on an independent creation of a genetically identical line). If they had a patent on the process, it would encourage a distinctly different business model from seed selling, such as a business creating new seed lines for specific uses ("designer" seeds), where the compensation would not just be for the first generation of seeds, but for the design process itself. However, to give them a patent that allows them to sue for infringement over the results of a natural process grants them an overly broad right.

    On your second point, my guess is that the representative would say that while producing a new crop of seeds may be a foreseeable result of planting, which is an allowed use following a "commodity" sale, the newly created crop of seeds should be destroyed in order to prevent damage due to the infringing act of creating a new product. While I disagree that this is what the license grants, partly due to its language, and partly due to other provisions restricting this behavior as it regards original purchasers, it is not an entirely meritless reading, especially in light of the current limits of the exhaustion doctrine (ie, the patent is only exhausted only as to the actually sold product).

     

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  71.  
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    Markus Hopkins (profile), Sep 28th, 2011 @ 4:05pm

    Re: Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting

    Also, if you do hear back, and it's something different, I'd appreciate you sharing it.

     

    reply to this | link to this | view in thread ]

  72.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 7:49pm

    Re: Re: I used to work for a Monsanto agency

    He just did blow the whistle on them. As for being anonymous, there are a lot of us ACs here, including you, me and him. If he was not anonymous, it would be Monsanto (with big city lawyers) versus one individual (with a little suburban lawyer). We all know how that turns out. You are effectively inviting him to volunteer for prison. You do not work for Monsanto, do you?

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 8:32pm

    Re: Re: Re: Re: I used to work for a Monsanto agency

    "what kind of society do we live in if everybody sees who stole my car, but nobody will stand up and give evidence against the thieves, for fear they will "get him"?"

    That would be just about every society, since the evolution of humans on earth. Having a properly-working whistleblower protection scheme in place for crimes committed by elite persons, is extraordinarily unusual. Most pollies are nowhere near figuring it out.

     

    reply to this | link to this | view in thread ]

  74.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 8:54pm

    Re: What's next?

    Yes.

     

    reply to this | link to this | view in thread ]

  75.  
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    btr1701 (profile), Sep 30th, 2011 @ 10:46am

    Don't see the problem...

    The patent system is working just fine. Monsanto won didn't they?

     

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  76.  
    identicon
    soussi, Apr 12th, 2012 @ 2:33am

    Monsanto, just a part off the evil plan

    yes monsanto can do this because he plays a key rol in the illuminat/NWO shit going on. They are patenting food now, and already a couple of years!! For the male persons who reads this, for your health don't eat maïs, I won't tell you why, cause you wouldn't believe it. Look up why mais is not good for males!!

     

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  77.  
    identicon
    PoliticalJunkie9264, Mar 17th, 2013 @ 2:45pm

    And when are seed companies going to respect the intellectual property of generations of farmers who developed the seeds in the first place?

    One of the most important issues that these articles never acknowledge is that patents have allowed private individuals/companies to control the global food supply. Never in our history has anyone owned an entire strain of food until now, and it has dangerous implications for global food security (http://internationalpost.co/seed-patents-controlling-the-worlds-food-supply/).

    We've lost most of our plant genetic diversity, many farmers no longer develop their own seeds, and the seed-sharing systems that have been vital to human survival for 10,000 years no longer exist in many parts of the world because of seed patents.

     

    reply to this | link to this | view in thread ]


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