Monsanto Wins Case Of Seed Patents; Planting Your Own Legally Purchased & Grown Seeds Can Be Infringing

from the this-is-the-world-we-live-in dept

We’ve written a few times now about Vernan Bowman’s legal fight against Monsanto, concerning patents over so-called “Roundup Ready” seeds, which Monsanto has patented. Here’s the quick version of the details from an earlier post:

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).

Note the key things here. Bowman did not break any license agreement over seeds that he bought. He also legally purchased other seeds that had been legally provided to grain elevators to be sold. All he did was plant those legally purchased seeds, for which he was not violating any license agreement, and then harvest and replant the seeds that came from them. And this, apparently, is illegal under our patent system.

Given the fire power that came out in support of Monsanto — including the federal government — it shouldn’t come as a huge surprise that the Supreme Court just gave a complete and total victory to Monsanto. The key issue was whether or not this was a case of “patent exhaustion.” There was a key case a few years ago that mostly said that once a patent holder sells a product, the patent is “exhausted” so that the patent holder can’t demand licensing fees up and down the supply chain. However, they distinguish this case by saying that this is different because it’s a “copy” of the legally purchased seed. I could see how that would make sense if we were talking about someone building a copy of a machine in a garage or something, but this is a seed. Copying itself is what seeds do. That’s kind of their entire purpose.

Yet, throughout the decision, the court (with a decision written by Justice Kagan) acts as if Bowman just built a replica. But that ignores the fact that this is nature we’re talking about seeds that replicate themselves naturally, because that’s what seeds do. The court has no problem with this, but it seems somewhat ridiculous that someone can legally buy something, have it do what it naturally does (and has done for nearly all of history) and then be told that violates a patent. When addressing Bowman’s point concerning the fact that seeds by nature, replicate themselves, they basically brush that aside by noting that Bowman then harvested them. As if he’s supposed to ignore what’s happening?

But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops. As we have explained… Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium.

The decision keeps restating the myth that patent holders wouldn’t innovate if they weren’t blocked from any and all competition.

That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.

That’s a pretty bold statement, and one not supported by any evidence. There are plenty of reasons to innovate that have little to do with patents, and competition in the marketplace is a big one. The process Bowman used above may have created some competition for Monsanto, but hardly in a way that destroyed the value of the patent. Monsanto was still first to market and still could control various uses via licensing agreements. Furthermore, the process that Bowman went through was inexact and required a few years of harvests.

The one thing that the ruling does say, however, is that no one should take this ruling to apply to other self-replicating products, such as technology:

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. … (“[I]t is not [a copyright] infringement for the owner of a copy of a computer program to make . . . another copy or adaptation of that computer program provide[d] that such a new copy or adaptation is created as an essential step in the utilization of the computer program”). We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.

While it’s good that they acknowledge this, you can bet that this case will be cited heavily when the same issue comes up in court concerning self-replicating software and hardware…

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Comments on “Monsanto Wins Case Of Seed Patents; Planting Your Own Legally Purchased & Grown Seeds Can Be Infringing”

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125 Comments
Jeff (profile) says:

This is another bad ruling by the supreme court (bought and paid for by the corporations).

This probably wasn’t the best case to use as a test, but the milk is on the floor now.

My big question is this – why didn’t the people opposed to “Franken-foods” get involved in this? With this ruling, the supreme court has basically said that all seeds are subject to patent, therefore all farmers have to use them…

Suzanne Lainson (profile) says:

Re: Re:

My big question is this – why didn’t the people opposed to “Franken-foods” get involved in this?

Oh, they have been. They have been fighting Monsanto for a long time. But this proves how hard it will be to beat the corporations.

That’s one reason they want laws passed that require GMO labeling. They don’t want to support Monsanto and want to know what foods to avoid.

Suzanne Lainson (profile) says:

Re: Re: Re:

There is so much anti-Monsanto sentiment amongst the anti-GMO folks that I’ll let you all Google it if you want. But yes, you would have allies there.

There are a number of articles out today about this report. Again, you can Google it if you want.

Are You Funding Monsanto’s Promotion of GMO Cops Overseas? | Fox Business: “U.S. taxpayers are footing the bill for overseas lobbying that promotes controversial biotech crops developed by U.S.-based Monsanto Co and other seed makers, a report issued on Tuesday said.

“A review of 926 diplomatic cables of correspondence to and from the U.S. State Department and embassies in more than 100 countries found that State Department officials actively promoted the commercialization of specific biotech seeds, according to the report issued by Food & Water Watch, a nonprofit consumer protection group.”

Anonymous Coward says:

Re: Sue Monsanto...

Monsanto could get around that to thanks to the idiots on the Supreme Court.

A lawsuit over violation of TOS or warranty or false advertising by a company would be too little an amount to be worthwhile suing over, except in a class action lawsuit.

And the idiots on the Supreme Court ruled that simply putting a clause in your TOS that states that you aren’t allowed to participate in any class action lawsuit against them protects them from ANY class action lawsuits.

Even if they’re 100% obviously guilty of whatever the class action lawsuit is about. I believe it was AT&T that got us that decision, by lying about ‘free’ cell phones if you sign up for AT&T’s phone plan, and then charging customers a $10 state tax never mentioned in the cost of ‘free if you sign up with AT&T’.

Ophelia Millais says:

Re: Sue Monsanto...

Sounds to me like he was deliberately sold a product which could not legally be used to do the things it was sold for

As the linked court opinion notes, the grain elevator sold the seed for the ordinary use of consumption, not the extraordinary use of planting. I think warranty of merchantability would only apply if the seed were unfit for the ordinary use of consumption.

btrussell (profile) says:

Re: Re: Sue Monsanto...

“As the linked court opinion notes, the grain elevator sold the seed for the ordinary use of consumption, not the extraordinary use of planting.”

Holy old sheep shit. I hope no one finds out I just planted some potato beans I had originally bought to eat.

Next up, General Motors declines licensing of off road use for THEIR four wheel drive trucks. “We did not invest billions of dollars for some redneck to get OUR truck stuck in the bog.”

That Anonymous Coward (profile) says:

“We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.”

Because we can’t without looking more foolish. We have to make different rules for different things at different times depending on who will benefit, rather than address the idea of patent exhaustion and issue a clear ruling.

TheLastCzarnian (profile) says:

Patenting Nature

This is certainly taking the concept of what can and can’t be patented and turning it upside down. The idea is, a person following laws already existing in nature should not be able to infringe on a patent. Thinking, feeling, life, liberty, persuit of happiness, all that. Now, if a person plants a handful of beans, he has to worry about where those beans came from.

Hopefully, this will lead to Congress limiting and possibly even abolishing the patent system. I’m not holding my breath, though.

Anonymous Coward says:

Re: Patenting Nature

Patents on living organisms have never been a good idea.

While I recognize that a company has a right to sell a product, such as GM seed, and to take reasonable precautions against preventing copying of that product, the patent system as it stands is unsuitable to such a task.

Roundup ready seed is a living organism, it grows, proliferates and dies, just as we do. It does not respect patents, copyrights or the will of its creators. It merely survives, and adapts in any way it can, it WILL get loose, and it WILL turn your patent into a farce.

Furthermore, with terminator genes, a farmer must purchase new seed every year, instead of re-using old, as has been done since the neolithic. This practice is downright condescending and evil. When we combine it with strict patent enforcement (checking for surreptitiously planted seed) and the natural propensity of life to adapt (seeds grow and spread despite terminator genes), we have a recipe for trouble… if you’re a farmer.

Anonymous Coward says:

Re: Re: Patenting Nature

The other major issue is that is basically ensures that you can only purchase “certified” seed now and not have to worry about patent infringement. Either it has to be Monsanto licensed or it has to 100% not be. Buying seed that could possibly have some patent amount/genes in it just leaves you open.

It’ll only take a couple of gene patents to completely lock down the entire seed industry (at least for soybeans, it already is).

Even growing your own seed is risky if there is any other farmers nearby. If the patented genes confer some increased vitatliy (more seeds, faster growing seeds, etc.) it does not take many generations for that gene to outcompete the old. A little pollen gets into your field and you’re on the hook for massive patent damages.

Mike Brown (profile) says:

Re: Re: Patenting Nature

I think it’s absolutely ridiculous to claim copyright on DNA. Here’s why: each generation of organisms only gets half of its DNA from each of its parents. So unless a Monsanto soybean is planted and pollinated by another Monsanto soybean plant, I would say that the resulting generation was only half Monsanto. The next generation only 1/4th, and so on.

If an organism only owes half of its DNA to a Monsanto seed, is it still a Monsanto seed, or is it something new (a derivative work, if you will)? If not half, how about 1/4th? 1/8th? At what point is a plant “not Monsanto enough” to fall under their IP?

Given enough time, Monsanto could claim that all soybeans grown in North America are theirs, because the wind blows pollen every which way, and sooner or later their trademarked genes may turn up anywhere.

This is insanity. Let’s be honest: Monsanto did not “invent” anything. They observed nature. They realized that there are different varieties of soybeans all over the world. they picked a few with characteristics they liked, cross-pollinated them, and managed to fool someone into thinking the result was a new “invention.”

Anonymous Coward says:

Re: Re: Re: Patenting Nature

Other issue is there is currently no easy way to distinguish Monsanto seed (or really any GM seed) from “normal” seed.

Are you going to DNA test every single seed you’ve got?

The only (semi-)practical test is to plant it, let it grow, then try to kill it with glycophospate. By that point, you’ve just destructively tested your “in-the-clear” seed (DUH!), or you’re in patent trouble b/c you just did exactly what ol’ Vernon did.

Anonymous Coward says:

Re: Re: Re:2 Patenting Nature

“Are you going to DNA test every single seed you’ve got?”

that is exactly what this farmer did, he got a bunch of seeds and through a specific process (applying roundup) ‘tested’ for the required DNA, he then got those identified DNA seeds and planted them for his crop.

Anonymous Coward says:

Here's some reductio ad ridiculum

What happens when a child is conceived through in-vitro fertilization coupled with patented genetic modifications? When that child becomes an adult and has children of its own, does the person now owe royalties to the patent holder? Can the person be sued for patent infringement and perhaps even forfeit the patented item?

Anonymous Anonymous Coward says:

Re: Here's some reductio ad ridiculum

Along those lines, if the patent expires after 20 years, why would this not work, if the patent is expired. I know, evergreening, but is the ‘bean’ in question from a patent that is expired? How old is the patent in question, and what happens when it expires, and there is a ready availability of ‘Roundup Ready’ seeds that have not yet been evergreened?

Anonymous Coward says:

Re: Re:

no, the Supreme court decided that if you take some seeds intended for consumption, that contain some seeds that if you use as seeds (and not food) and you specifically select from that group of seeds, seeds of a specific type (the Roundup ready type), then use those seeds to produce a new crop of the offspring of those seeds, they you ARE making a copy of something you are not entitled to copy.

It’s just that simple, why do so many idiots here on TD have trouble with that ?

oh look, I answered my own question… !!!

Josh in CharlotteNC (profile) says:

Re: Re: Re:

and you specifically select from that group of seeds, seeds of a specific type (the Roundup ready type), then use those seeds to produce a new crop of the offspring of those seeds, they you ARE making a copy of something you are not entitled to copy.

Sounds like the Supreme Court just ruled that a process humans have been engaging in for around 10,000 years (agricultural breeding) is the sole government granted monopoly domain of Monsanto.

Yes, it really is that simple. Which is why everyone who hasn’t been drinking the patent lawyer kool-aid thinks it is insane.

Seeds reproduce. It is their entire purpose. Somewhere around 319 million years ago the first seed producing plants evolved from other plants that produced spores. For millions of years plants have been making seeds for exactly one purpose: reproducing themselves.

If Monsanto wants to design and sell some plant (or seed of one) that doesn’t reproduce itself, I have no problem with them doing so. But to expect everyone not to use seeds for their entire evolutionary purpose is insane.

Willton says:

Re: Re: Re: Re:

Sounds like the Supreme Court just ruled that a process humans have been engaging in for around 10,000 years (agricultural breeding) is the sole government granted monopoly domain of Monsanto.

Yes, it really is that simple. Which is why everyone who hasn’t been drinking the patent lawyer kool-aid thinks it is insane.

Oh, look! A strawman! Yes, that is insane. Good thing that’s not what SCOTUS held.

SCOTUS did not rule that agricultural breeding is patented. It ruled that the process of isolating a patented agricultural product from a group of assorted products and purposefully reproducing it so that you can have more copies of it is infringement. There was nothing accidental about Bowman’s conduct; he purposefully controlled which seeds were allowed to grow and which ones were not so that he could have a population of patented seeds he could call his own.

Please, before spouting off on what is wrong with the patent system, please get your facts straight.

Josh in CharlotteNC (profile) says:

Re: Re: Re:2 Re:

SCOTUS did not rule that agricultural breeding is patented.

It ruled that the process of isolating a patented agricultural product from a group of assorted products and purposefully reproducing it so that you can have more copies of it is infringement.

Those statements are mutually exclusive. SCOTUS ruled that you cannot perform breeding on a living organism that contains patented genes. That is ruling against performing breeding.

There was nothing accidental about Bowman’s conduct; he purposefully controlled which seeds were allowed to grow and which ones were not so that he could have a population of patented seeds he could call his own.

I never said it was accidental. Of course he selected for crops that did better. That’s exactly what breeding is – selecting for certain traits over others to get the desired result.

You seem to want these words to mean something different because you recognize that this really is crazy, but you can’t admit it.

We’re not arguing on the facts of this case. I don’t dispute what the facts are, or what SCOTUS ruled on. I’m saying the ruling is insane. I’m arguing patents on genes or living organisms are insane. I’m arguing the entire patent system is bat-shit crazy, bonkers, unhinged, nutty as a cargo ship full of fuitcake, insane.

You want this crazy. I don’t.

I will not pretend to be stupid. I will not pretend that insanity at this monumental level is a good thing. I’m going to call it out as the utter ridiculousness that it is. I looked at a thesaurus writing this. There aren’t enough synonyms for crazy to cover this nonsense.

Willton says:

Re: Re: Re:3 Re:

Those statements are mutually exclusive. SCOTUS ruled that you cannot perform breeding on a living organism that contains patented genes. That is ruling against performing breeding.

No, it’s a ruling against performing breeding of a patented product. The act of breeding in and of itself is not infringement; it’s the purposeful breeding of a patented product that is.

I never said it was accidental. Of course he selected for crops that did better. That’s exactly what breeding is – selecting for certain traits over others to get the desired result.

You seem to want these words to mean something different because you recognize that this really is crazy, but you can’t admit it.

There’s nothing crazy about it. Selective breeding is nothing more than the agricultural equivalent of manufacturing. If manufacturing a patented product without a license is infringement, then reproducing a patented seed via agricultural breeding should also be infringement. To draw a distinction between the two when it comes to what is infringement and what is not lacks a rational basis.

We’re not arguing on the facts of this case. I don’t dispute what the facts are, or what SCOTUS ruled on. I’m saying the ruling is insane. I’m arguing patents on genes or living organisms are insane.

Seeds are not living organisms. They are organic material that is capable of creating living organisms. If you bought a can of beans from your local grocer, would you call those canned beans “living organisms”? If so, perhaps you are the one that is insane.

If you want to argue the merits for allowing plant patents, then feel free to offer your remarks. However, those arguments do not touch the merits of this case. This case is about whether Monsanto’s patent rights to their patented seeds were enforceable against a farmer who used such patented seeds to create more patented seeds without a license. Whether Monsanto should have such patent rights is an entirely different matter.

If you aren’t going to argue the merits of this case, then your input is not helpful in understanding why SCOTUS came to the decision it gave.

I’m arguing the entire patent system is bat-shit crazy, bonkers, unhinged, nutty as a cargo ship full of fuitcake, insane.

You want this crazy. I don’t.

I will not pretend to be stupid. I will not pretend that insanity at this monumental level is a good thing. I’m going to call it out as the utter ridiculousness that it is. I looked at a thesaurus writing this. There aren’t enough synonyms for crazy to cover this nonsense.

Nothing like a lot hyperbole to discredit your own position. Perhaps you should stop demonizing a system you fail to understand and start thinking and acting like a rational person before you start explaining what is wrong with this system. Then we can take you more seriously.

Anonymous Coward says:

Re: "a patent would plummet in value"

Yeah, a lot of people say how nullifying the patent would kill Monsanto’s business model.

The patent system isn’t for sustaining business models though. It merely gives the inventor of a qualifying invention the ability to exploit it commercially. It’s an important distinction

Jessie (profile) says:

It seems to me that if Monsanto did not want the seeds of their plants being used, they could have engineered the seeds to produce a plant that does not germinate. Since they did not do this, they sold a seed that was expected to eventually produce seeds. They should have known that this would happen and adjust their license fees appropriately.

Unless, of course, the seeds are versed in contract law.

Shaun Wilson (profile) says:

The computer program part is the complete opposite of the seed part:

another copy or adaptation of that computer program provide[d] that such a new copy or adaptation is created as an essential step in the utilization of the computer program

If you replace “computer program” with “seed” then it would be allowed – obviously “a new copy or adaptation is created as an essential step in the utilization of the” seed – that’s simply describing the whole process of growing plants – especially with seed crops.

Luke Stackwalker says:

I hereby patent perpetual motion...

I claim a method in which an invention is used for its intended purpose, and such said purpose results in a copy of said product being created but said copy cannot be used to further replicate said product so user must purchase more of the original product from the SCOTUS-protected patent holder.

Anonymous Coward says:

Re: I hereby patent perpetual motion...

Actually, it is the constitutionally protected patent holder. SCOTUS merely determined whether the patent laws supported Monsanto’s position. Furthermore, Monsanto has the burden of finding and prosecuting infringers, so if the circumstances are different, then it is possible that the outcome could be different.

Lastly, you cannot patent perpetual motion by law.

Violated (profile) says:

Monsanto should never have been granted a patent on a “food” product in the first where here they are trying to patch nature. Sure they made a nice product but this is nothing special in the modern world meaning that brand name sales would have been enough.

Thankfully other countries are not as stupid as the United States who by allowing food and software patents have just turned the whole system into a ghastly joke.

John Fenderson (profile) says:

Re: Strange definition of novel

Well, let’s be clear and correct about this. The full quote is “Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium.”

What they’re talking about is a little more than just planting the seeds and harvesting more seeds from the plants. He was identifying the RR seeds before planting, setting them aside, and planting & harvesting them special.

Still not incredibly novel, but more than just planting and harvesting.

John Fenderson (profile) says:

Re: Re: Re: Strange definition of novel

My mistake, he did identify them after first planting. Nonetheless, he also did more than simply observe which did best. He used roundup as a way of identifying the seeds that were roundup-ready.

I think my interpretation is still reasonable: that it’s this identification that the court was calling “novel”.

Note, I don’t agree and am not saying that Monsanto was the victim here. I’m just explaining how I am reading the court’s decision.

Willton says:

Re: Strange definition of novel

BY TAKING THE SEEDS THEY PRODUCED AND PLANTING THEM. Why did no one in the history of civilization ever think of this before? He should absolutely patent the shit out of that novel process!

You are totally mischaracterizing what Bowman did. Bowman bought the seeds, some of which were Round-Up Ready and some were not, planted them, and then sprayed them with Round-Up to kill off all but the Round-Up Ready seeds. Bowman was trying to isolate the patented seeds from the unpatented seeds so that he could save the patented seeds for future use, and he succeeded.

Please do not act as if he was doing something completely normal; he was selectively killing off the crops he planted so that only the Round-Up Ready ones survived. It’s hardly normal to purposefully destroy the crops that you planted just so you can have your own copies of a patented product.

Anonymous Anonymous Coward says:

Re: Re: Re:

But..but…wouldn’t that constitute illegal trespass? Fruit of the poisoned tree? If you are a farmer (let’s call you ‘Organic’ in your planting nature) and have NOT signed an agreement with anyone regarding the use of your self generated seeds. There needs to be some probably cause, at least in theory.

I guess it is possible at the grain elevator, which is more public and may have such an agreement, but does that agreement actually suborn your rights? What if you and your neighbor conflated your crops between harvest and shipping, to save on shipping costs? Who is gonna say which seed are which? I wanna see THAT forensics show (well maybe not, talk about slow moving (despite 15 minute DNA results which make Star Trek look tame with regard to doing the impossible)).

Alternatively what if you sold your crop directly to end users, who appreciated your ‘Organicalness’? Could someone actually test my ‘House of Natural Ingredients’ muffins and tell where the many plants came from?

me says:

I have a vision

I have a vision! I see seven stakes through seven burning pyres in the center of our National Mall, and tied to them the seven shamans of backwardness, graft, ignorance, and authoratative stupidity who have been selling our nation and it’s people to so many third world corporate dictators. It won’t be until after they are all burned clean, and our Constitution modified under the sane terms of modern minds that any justice for those who deserve it will be possible!

Anonymous Coward says:

“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.”

Grain elevators take “BEANS” to be sold as food, not “SEED”.

It’s on page 1 of the judgement, the license states you buy “seed” to sell “beans” for each planting. You want to plant a second -late- planting, buy more seed.
What the guy did wrong was buy “BEANS” to plant as “seed”, and then very deliberately separated off the Monsanto seeds by spraying the seedlings with glyphosate. Clearly in breach of the license.

Even in old school farming there is a difference between a seed crop and a food crop.

Anonymous Coward says:

Re: Re: Re:

No. Again on page 1 it says he buys his first planting seeds each year from Monsanto (or rather a local agent), where he would view and sign the license.
He then buy’s BEANS from the elevator to plant his second planting.
Thins out the non-monsato beans with glyphosate and plants the monsanto beans as seed.

He did it for eight seasons.

Anonymous Coward says:

Re: Re: Re:2 Re:

those licenses say you can’t keep seed.
So you can’t keep it, your neighbor can’t keep it, no one can.
Therefore if you’ve got the seed from somewhere other than monsanto or their agent, no matter how you got it it’s outside that terms of Monsanto’s license.

That One Guy (profile) says:

Re: Re: Re:3 Re:

But that’s the thing, he didn’t keep the seeds that were covered by the license he signed, he planted them, he harvested them, that was it. The ones he bought from the non-Monsanto source had no license attached to the sale, therefor he wasn’t legally bound in any way shape or form regarding what he did with them.

Evilcoleslaw says:

Re: Re: Re:4 Re:

Using patented technology without a license is patent infringement in and of itself. He was spraying the crops with glyphosate to separate out the non-Monsanto seeds and to kill weeds. In doing so, he knowingly gained the advantage of Monsanto’s patented seeds without license from Monsanto. Thus, willful patent infringement.

Had he not sprayed them with glyphosate he might have had a leg to stand on–in that it could’ve shown he was ignorant that the seeds contained Monsanto’s patented genes and that even if they were he was not benefiting from those genes. At the very least it may have reduced the judgement amount to be levied against him as it might’ve been shown to not be willful infringement.

That One Guy (profile) says:

Re: Re: Re:3 Re:

Might want to hesitate a bit more before slinging insults…

The license over the seeds only applies to those seeds purchased from Monsanto, not those purchased elsewhere.

Or to put it even simpler:
Buy seeds from Monsanto: Bound by terms/license regarding purchase of seeds.
Buy seeds from non-Monsanto source: Not bound by terms or license, as a license was never presented or agreed to at time of purchase.

Willton says:

Re: Re: Re:4 Re:

Or to put it even simpler:
Buy seeds from Monsanto: Bound by terms/license regarding purchase of seeds.
Buy seeds from non-Monsanto source: Not bound by terms or license, as a license was never presented or agreed to at time of purchase.

In other words, the seeds bought from the grain elevator were unlicensed, infringing products.

Anonymous Coward says:

Re: Re: Re:5 Re:

buy seeds from Monsanto – soy can only be sold in states that allow GMO food and then only (mostly) to elevators that supply animal feed.
You can’t sell the soy as seed – to anyone – full stop.

Now follow this closely…

If you can’t sell it legally, it can’t be bought legally.

Now I don’t know about you guys, but if I was American I’d be more upset if Monsanto wasn’t taking these things to task. Because the other option is unregulated GMO products sweeping through your country.
At the moment most of this shit ends up in your animals, but unregulated it’ll be straight in your food.

Anonymous Coward says:

Re: Re: Re:

Not in this case.

In the ruling it says “Grain elevators, …, purchase grain from farmers and sell it for consumption; under federal and state law, they generally
cannot package or market their grain for use as agricultural seed. But because soybeans are themselves seeds, nothing (except, as we shall see, the law) prevented Bowman from planting, rather than consuming, the product he bought from the grain elevator.

Anonymous Coward says:

Re: Re: Re: Re:

and he did not just plant the seeds he purchased he planted them out, treated them with Roundup, and specifically selected the Roundup ready type, and then planted only those selected seeds.

He went through a specific process intended to extract only the seeds he wanted to use, that were protected by a patent, me made a copy of only those seeds we knew he was not supposed to use.

Anonymous Coward says:

Re: Re: Re:3 Re:

Except in this case, he did not just “plant the crops that will give you the best yield.” What he did was to plant seeds that included Monsanto’s genetic modification for Roundup compatibility along with seeds that did not include the genetic modification. As the plants grew, he treated all the plants with Roundup to eliminate plants that did not bear Monsanto’s genetic modification. Thus, Bowman was deliberately trying to make soybeans containing Monsanto’s patented genetic modification, which did not occur in nature.

Generally, farmers buy seed each year from seed companies rather than “saving” seed from the previous harvest. The reason is that seed companies are constantly tweaking seeds to be the most disease resistant possible, and farmers are more interested in maximizing volume of harvest rather than finding specific plants with certain traits. Most farmers who “save” seed see reduced yields over time, unless they have a specific plan to produce seeds with specific characteristics, which most farmers do not.

As a side note: Monsanto is only one seed producer. While they are dominant because most farmers like Roundup Ready seeds, Monsanto only holds about 90% of the seed market in the U.S. So there are other, multiple sources of soybean seeds in the U.S. Monsanto is the largest producer of seeds in the world, with about a 23% market share.

Anonymous Coward says:

But that ignores the fact that this is nature we’re talking about seeds that replicate themselves naturally, because that’s what seeds do.

what thy copying was, that you failed to detail, is he purchased the commodity seeds, planted them out, treated then with Roundup, the selected the seeds from the only plants to survive.

This is where he has breached patent laws, and was the reason why he lost.

His intent was to replicate ONLY mansanto’s seed, and extract all others, then his intent was to use those seeds, and those seeds ONLY.

The ONLY seeds he allowed nature to reproduce where the ones specifically selected as ’roundup ready’ type.

Why did you not address this issue Masnick ?

Anonymous Coward says:

Re: Re:

So if somebody gets a patent on extremely “big” seeds and I selectively harvest and replant the bigger seeds from my crop so that I get bigger and bigger ones, I’m in violation?

This is exactly how it’s been done for centuries. The bar for novelty in this case is pretty low.

Andrew D. Todd (user link) says:

As Long As It is Only Farming

I should state at first that I don’t see any very compelling economic issue in the seeds as such. A commercial farmer in a developed country, with crop subsidies and all, is in very much the same position as the manager of a rich man’s “hobby farm.” The one thing which really matters is what “El Padrone” wants. The way out for a medium-small farmer is not by getting cheap seed, but by discovering a different mode of connecting to El Padrone, for example becoming a dude ranch or the equivalent. Crop subsidies encourage a certain kind of farming, in which the farmer is always buying and selling stuff, and taking a lot of market risk. There are political reasons for this, of course. The automobile industry is inclined to vote for farm subsidies for a regime which requires the purchase of automobile-derived tractors, harvesters, etc.; the chemical industry is inclined to vote for a regime which requires the purchase of fertilizer, pesticide, herbicide, etc.; the railroad and barge industries are inclined to vote for a regime in which intermediate products are shipped for hundreds or thousands of miles, eg. grain grown in North Dakota being shipped to a feedlot in Arizona to be fed to cattle there.

A farmer who broke away from the subsidies might decide to adopt a more local method of operation. Louis Bromfield, at his Malabar Farm in Ohio in the 1940’s, wound up with a system of perennial plants with a closed Nitrogen Cycle, specifically bluegrass and clover. He planted mixed field-pastures of bluegrass and clover; the clover fixed nitrogen in the soil; both plants formed a dense network of roots which made erosion impossible; the cattle grazed the field-pastures, and directly returned their dung to the soil, thus nearly closing the Phosphorus Cycle; and the field-pastures were periodically mowed to accumulate mixed green silage for winter feed. There was no annual harvest crisis. Because the livestock tended to spend its time spread out over the fields, it was less subject to illnesses, and didn’t need antibiotics. What the farm sold was not grain but steers. The practical effect of Bowman vs. Monsanto is that a certain number of marginal farmers might decide to break away from Monsanto’s whole system.

—————————————–

My major concern is how this decision might impact software. Granted, Justice Kagan has offered a disclaimer, but I would be happier if it were more detailed, and explicitly dealt with the boundary cases. I attempted to think about what the Monsanto case could mean in terms of software, and in terms of software which gets modified, and used in ways not originally envisioned. The closest point of approach I could think of was IBM’s OS/2 Warp operating system back in the 1990’s. In the early 1990’s Microsoft had temporarily lost its way in developing the lower building blocks of what eventually became Windows 95. IBM had a competing operating system, OS/2, which had grown out of collaboration between the two companies. As commercial relations soured, they each went their own way. Microsoft had produced an early version of Windows, Windows 3.1, which ran on top of MS-DOS. IBM produced OS/2 Warp. If you already had a copy of Windows 3.1, OS/2 Warp would read the Window 3.1 files into memory, modify them cleverly, connecting them up with parts of itself so that they became parts of OS/2 (*), and use the resulting combinations to run programs which had been designed to run on Windows 3.1. OS/2 was careful not to save the modified Windows 3.1 components in any permanent or tangible form, but regenerated them every time they were loaded. And it did this in competition with Microsoft’s Windows 95, or rather in preemption of it, as Microsoft was still promising the customers “real soon, now!” As it developed, IBM charged too much for OS/2 Warp, and demanded too much in terms of “lock-in,” for it to be an effectual threat, and Microsoft eventually got Windows 95 out. Microsoft had its failings, no doubt, but at that time, intentional sabotage of the end-user was not one of them.

(*) “We are Borg. Resistance is Futile. You will be assimilated. Your distinctiveness will become part of our distinctiveness.”

There are two major programs which come with Linux, for the purpose of continuing to use software which was originally intended to run on Microsoft operating systems, specifically WINE and DOSBOX.

WINE does something technically similar to OS/2 Warp, but not as economically radical. Suppose you have a program (call it Foobar), and specifically a version of Foobar which is designed to run under Windows (“Foobar for Windows”). When you run “Foobar for Windows” in WINE, WINE loads “Foobar for Windows” into memory, and cleverly alters it so that it becomes a Linux program which relies on an additional set of libraries, the WINE libraries (“Foobar for WINE/Linux”). And WINE causes this program to be executed natively, just like any other Linux program which happens to require certain enumerated libraries. The economic difference is that WINE does not occasion direct economic competition with a derived product. The WINE libraries do not derive from any version of Windows, so it does not have the element of “seething the kid in its mother’s milk.” A user of WINE might use it to run Microsoft Office, but he is still, in essence, getting what he paid for, the use of one copy of Microsoft Office. All Microsoft looses is the chance of selling an enforced upgrade, and Microsoft’s position is no worse than if the customer decided to go on using his Windows computer to run legacy Windows software, and got an additional computer to run Linux and Linux software. Say that the user got a Linux machine to do graphics work with GIMP, as a alternative to buying Photoshop to use on his Windows machine. Microsoft has no legitimate grievance in that case.

DOSBOX executes legacy programs by a less efficient method, emulation, which has less risks of various sorts. In this case, suppose your program is “Foobar for MS-DOS” When you run “Foobar for MS-DOS,” DOSBOX loads it into memory, but does not alter it. However, instead of executing Foobar, DOSBOX calls a program which reads the first byte of Foobar, works out which actions that byte would have occasioned if executed, performs those actions, proceeds to the next byte of Foobar, and so on (*). DOSBOX does not use a copy of MS-DOS. Like WINE, it has a library which is functionally equivalent. If it should prove legally necessary, WINE can easily adopt DOSBOX’s method of procedure, probably with not too great a penalty in performance.So much of a Microsoft Windows program consists of calls to system libraries, and the processor spends so much of its time in the libraries, where emulation overhead would not apply, eg. put a string of text to the screen, with such and such a font, and such and such a point size, and report back how many pixels were needed.

(*) There are some distinctions between the old MS-DOS “com” and “exe” file formats. The “com” format was just a binary blob which got loaded into memory, starting at 100hex of the code segment. The “‘exe”‘ file format is a bit more complicated, as it provided for chunks of relocatable binary code, and tables of addresses within these chunks, which would have to be changed. However, it is perfectly possible for an emulator to recognize those instructions which use absolute rather than relative code addresses, look the addresses up in the table, and make allowance for them at run-time, thus leaving the distribution code purely intact. In the Intel processors, the vast majority of flow-control instructions, that is conditional-jump and conditional-loop, use relative addresses rather than absolute addresses, and therefore have nothing to do with the relocation table.

———————————————————–

Another sort of boundary case might be an open-source distribution arranged to be easy to customized and to give away. Suppose that your Linux distribution installs as follows: first it partitions and formats the hard drive, and sets up file systems, and then it loads the whole distribution DVD, verbatim, into an “ISO” file on the hard drive. Having done that, it subsequently uses the “‘ISO” as a source of packages, and it explicitly prompts the user to burn copies of that “ISO” file to new blank DVD disks and give them away.

Anonymous Coward says:

Re: As Long As It is Only Farming

nice try, but I feel it’s almost impossible to draw parallels between this case and software.

This farmer did not violate the patent, as you would if you wrote software that used the same method to achieve the same result as something already patented.

This farmer did not genetically modify seeds to product roundup ready seeds using the same method that Monsanto did.

He is not modifying DNA in seeds, he simply made illegal copies of Monsanto’s RR seeds by purchasing beans (seeds intended for food) and selectively breeding the seeds for his next crop.

This is in breach of the conditions he signed onto when he first purchased the seeds, and the intent of the bean storage of for beans (seeds for consumption, not planting) for the purpose of making copies for himself.

It’s more of a breach of the EULA. On two counts,

1 he selected RR specific seeds for planting in breach of the agreement he signed when purchasing the original seeds.

2. He used seeds intended (specifically) for consumption (NOT FOR SEED STOCK), and used those seeds for seed stock.

All the farmers in that co-op agree to sell their beans to the co-op for the purpose those seeds (beans) being used for consumption, with the agreement that you do not buy seeds off the co-op for the purpose of crop seed stock.

The farmers who sell their beans to these co-op’s do so under the understanding that these seeds are not for new crops but for consumption.

The farmers who buy seeds from these co-op’s also buy these beans with the understanding that they are for consumption only,, not crop seed stock.

so this farmer not only breached the agreement with Monsanto, but his agreements with the co-op, and the other farmers in this co-op. So he is ripping off his own neighbours and friends. And himself.

Anonymous Coward says:

Rotten Company ?? why would farmers pay them ?

Monsanto is so rotten that farmers will go to all sorts of lengths to get to use their terrible products !!!!..

So rotten that people will happily pay a premium price for this product, sign licenses and agreements just to use this terrible product from a rotten company.

Such a bad product that farmers, will purchase seeds in bulk intended and licenses for consumption, and go to great efforts to select from that bulk of seeds the specific seeds from this terrible, rotten company.

Why would they do that ? Could it be because of the great benefit these seeds give to the farmers, and to food production in general ?

If farmers felt Monsanto was bad, or made bad products, they would not use them, they would use the seeds they have always used. But the profits Monsanto makes is due to farmers willing and WANTING to purchase their products because it’s benefits them so much..

These seeds and the products from companies like Monsanto, developed at great expense makes ordinary farmers life far easier, and significantly boosts their productivity. Farmers WANT these products, are willing to pay for them, and are thankful for companies like Monsanto and the others like them.

staff (user link) says:

more dissembling by Masnick

‘The decision keeps restating the myth that patent holders wouldn’t innovate if they weren’t blocked from any and all competition’

The dissembling continues. Without the right to exclude others, inventors have no chance at commercializing against far better established and well funded firms who will elbow you out of the market you create. None are so blind as those who WILL NOT see.

Masnick and his monkeys have an unreported conflict of interest-
https://www.insightcommunity.com/cases.php?n=10&pg=1

They sell blog filler and “insights” to major corporations including MS, HP, IBM etc. who just happen to be some of the world?s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don?t have any.

http://truereform.piausa.org/default.html#pt.

Anonymous Coward says:

I feel that this is conflating “wrong – and should be punished” with “illegal – and can be punished.”

The statement of facts, as I understand it:

Party A (Farmer) regularly purchases Commodity A (licensed Monsanto seeds) froom Party B, that comes with a license agreement restricting the use of Commodity A. Of particular note, the license agreement applies to acceptable uses of Commodity A`, the product of Commodity A (as well as Commodity A“, etc.).

Party A purchases Commodity B (grain elevator “beans”), which is known to potentially contain Commodity A`. Commodity B has no accompanying license, but is nominally earmarked for a particular use. Though Commodity B is capable of other uses, it can only be sold for the particular use.

Party A uses Commodity B for a purpose other than the earmarked use, resulting in the production of Commodity B`.

Party A applies Technique A (spraying glycowhatever) to Commodity B`, intending to isolate distinctive characteristics of the Commodity A line. The product of this technique we will call Commodity C.

Technique A is iterated several times (applying to Commodity C` to produce Commodity D, etc.). The overall intent of this process is clearly to produce Commodity (X), which bears the same properties as Commodity A.

Party B sues Party A, claiming that production of Commodity C and derivatives is patent infringement, as the end goal is reproduction of Commodity A.

Matters are complicated because 1) Commodity A (and all commodities in this example) is self-replicative, so Commodity A` is effectively the same as Commodity A; and 2) Commodity A is not technically patented, as Commodity A is a product of nature – what is patented is the specific process of isolating a specific trait of Commodity A, which is expressed in the distinctive characteristics that Party A sought to isolate through application of Technique A.

Commodities A` etc. are not protected by the patent, because the objects themselves are not patented. Rather, the specific process of isolating the specific trait is patented. Therefore, Commodities A` etc. are protected by the license agreement accompanying the sale of Commodity A, with the result that violation of the license agreement in ref: Commodities A` etc. constitutes an infringement of the patent of Commodity A (unlicensed use).

Party B argues that Party A is guilty of patent infringement through violation of the license (Using Commodity B for other than the purpose sold constitutes use of Commodity A` outside the license).

Party A argues that 1) the license on use of Commodity A (and derivatives) relates only to the specific line of Commodity A purchased (as there is no way of identifying Commodity A or derivatives outside direct and licensed purchase); 2) there was no license on use of Commodity B, express or implied, regardless of the nominal earmark; 3) Technique A is distinct from Party B’s patented isolation process; 4) Technique A produces Commodities similar in characteristic to Commodity A and derivatives, but does not actually result in the production of Commodity A or derivatives, due to the inexact process involved (demonstrated by the effectiveness of iterating Technique A).

The Court sides unanimously with Party B.

Now, Party A is rather scummy, but I’m a little uncomfortable about the legal basis for claiming an actual violation. I’m also concerned aobut the precedent set by the ruling, narrow as it is.

Then again, I also feel it’s pretty impossible to come to a ruling on the matter at hand without addressing the unique relationship between patentability and self-replicative technologies. I’m especially uncomfortable with how readily the court dismissed the possibility that self-replication in this situation could have involved “a necessary but incidental step in using the item for another purpose”.

Anonymous Coward says:

Anonymous Coward at Comment 95, May 14, 7:28 AM

I think several issues weighed against Bowman.

(1) Bowman did originally sign an agreement with Monsanto.

(2) Bowman used seeds from a grain elevator, but then sprayed the plants with Roundup. He then saved seeds from the harvested plants. Because Roundup Ready plants do not breed perfectly true, i.e., with subsequent plantings the trait that keeps a plant Roundup Ready is lost, Bowman augmented the trait by selecting plants, thus intentionally duplicating or replicating Monsanto process to obtain more seed that would meet the original patented process.

(3) Bowman kept refining Roundup Ready beans for eight seasons, thus keeping his beans fairly pure and true to the patented trait.

(4) Bowman could hardly argue that Roundup Ready soybeans were “natural” since Roundup is not natural and since the soybeans were specifically developed to be compatible with a man-made chemical.

The whole “it’s food and food should not be patented” argument is specious, at best. Natural soybeans do exist, and even replanting Roundup Ready soybeans eventually yields “natural” soybeans after many generations. It seems that many people believe that the only option is to plant Roundup Ready soybeans, when such is not the case. There are many competitors to Monsanto that provide soybean seed, and farmers do buy those seeds.

A couple of FYI’s:

The last of Monsanto’s patents expires in 2014. The claim of “evergreening,” which is generally a myth, will not in any way give Monsanto any additional patent protection on the current genetic blueprint for Roundup Ready soybeans.

One question that has yet to be answered is who will pay for continued regulatory approval for Roundup Ready seeds? Monsanto has currently paid for all such approval, and has stated they will continue to pay for such approvals until 2021. After that date, fragmentation of the market may cause an explosion of costs for regulatory approval if seeds vary genetically from the original Monsanto formula. Growers of potential “generic” seeds may need to pay their own regulatory fees to the FDA.

Anonymous Coward says:

Re: Ex-Monsanto lawyers

Why not unanimously? In this particular case, the law seems quite clear. Bowman was reproducing the invention not only be reusing seed, but by deliberately purifying the product to be predominantly Roundup resistant. That action alone falls into the category of “make,” in addition to “using.”

Excluding the two ex-Monsanto lawyers, the remainder of the judges saw the law as reading one particular way. Given the mix of liberal and conservative judges, the ruling is unusual in that all the judges agreed on the present interpretation of the law, which means that the law appears clear to them.

Point to issues in the ruling, not in those who made it.

Cowards Anonymous says:

In the future...

May 2053

Supreme Court upholds Monsanto’s patent claims against two of their patented humans genetically modified to be resistant to disease. The disease resistant humans infringed on Monsanto’s patents when they gave birth to their children who also contained Monsanto’s patented technology without a license. The Supreme court cited the Bowman vs Monsanto decision in deciding that patent exhaustion did not apply to the genetically modified parents after their initial creation.

The children were ordered to be executed and the parents ordered to pay 4 billion dollars in damages to Monsanto.

John says:

Limitations and solutions

Use the beans for animal feed. What monsanto doesnt know, wont hurt them. And i agree with some comments ive seen above… If i never entered into a liscense agreement, then i am not bound to its terms. Like if i find a computer in the trash, or buy it from a yard sale, i can decompile or do whatever i want with any software that happens to be on it, except sell copies. If i use soybeans for animal feed, and sell animals, then i am not selling illegal copies of seeds.

John says:

Solutions

And no, Im not making more seeds… If i aquire, say, 100lbs of patented seeds without entering a liscense agreement, plant them out, then feed all but 100lbs of the seeds to my animals, Then replant the remaining 100lbs the following season, then I am not increasing the number of seeds in the economy. Certainly not ‘ad-infinitum’, as the supreme court specifically stated was its intent to avoid. And has been commented above, I would regularally purchase new seed from seed companies, to aquire better yields, qualities, and disease resistance. People buy new tomato seeds, even though non-patented heirloom varieties are easily obtained, and reproduced. Seed companies SHOULD have reason to innovate, far more frequently than a 20 year interval. How long ago was the patent for glyphosate resistant soy granted, anyway? Id assumed it had already expired, when Monsanto began to create more strict liscence requirements. Cant be that much longer…

john q public says:

farmers choice

I have to ask, why can’t farmers just say ‘screw you’ to Monsanto and go back to traditional techniques? Yes the harvest may not be as large or frequent, but they’d be free of this crap. Seems like they should quit complaining if they’re reluctant to go back to the ways things were, or lack the skills and expertise necessary to do so.

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