The farmer here knew of Monsanto's license by which you could buy their genetically-altered (patented) seeds for the purpose of planting one crop only and selling that crop, with the need each year to buy more of the patented seeds from Monsanto directly or from one of its authorized resellers and with a specific prohibition on any form of replanting. Each year, he routinely bought these seeds and planted them in accordance with the license restrictions for his primary crop. For his secondary crop each year for eight years running, though, he bought seeds generically on resale from a grain elevator, planted them in a such a way as to isolate which parts of the resulting crop were from the Monsanto seeds, and, through a continual culling process, regularly wound up planting these Monsanto seeds for an 8-year period so as to get the benefits of the patented seeds without having to buy them from Monsanto or a Monsanto dealer. When he got sued over this, he argued that the "bean did it" by claiming that he did not himself "make" or "create" an infringing product so as to infringe Monsanto's patent but rather forces of nature over which he had no control created the new product, thereby absolving him for any responsibility for infringement.
People often mock the law for its occasional absurdities and for its bone-crushing processes, and rightly so. But most U.S. law at its core is grounded in sound principles that make a lot of sense, and the case here represents one such instance.
Granting the premise of patent laws that an inventor is to have monopoly protection for a prescribed period in order to profit from his invention, it makes perfect sense that the patent exhaustion doctrine should not be interpreted such that, after but a single sale of the product that benefits the patent holder, others can simply make copies of the product for sale or use directly and without compensating the patent holder in any way. Now, some may support such an outcome in the name of sticking a thumb in the eye of patent holders but, given that U.S. courts do not have a mission to subvert the patent laws and instead seek to uphold them as the law of the land, those courts cannot really abide such a result. Instead, they will say that the farmer's argument here that the "bean did it" is pure sophistry and a way of subverting the plain purpose of the law. That is exactly what the U.S. Supreme Court did here. And that is why it was unanimous. By legal standards, it really was not a close call.
In the words of the Court: "In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct."
All that said, the court was very careful to note that its ruling does not in any way apply to all forms of 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." Thus, the ruling was not a knee-jerk upholding of maximum protection for the patent laws. The court seems more than ready to keep an open mind when it comes to changing technology. It simply was not ready to give sanction to a clever interpretation of law that would have undercut the very fundamentals of why the law existed in the first place.
The problem is, if a plant can do it, why is it patentable as an invention?
I'm fine with patents involving biology in general. And I'm fine with the court blocking you from creating patented devices via some Rube Goldberg machine to try to absolve yourself of responsibility.
But we're talking about a plant sitting by itself with no external input.
Nothing a plant is capable of doing should be novel or non-obvious. A patent on creating the GM seeds with human tools? Sounds great. A patent on cell division copying whatever lies in front of it? Ridiculous.
I wonder if this says anything about the ruling we can expect from the court on the Myriad Genetics case. The New York Times summary implied that the farmer in question had some knowledge that he was using seeds in a way that might infringe, if you buy the argument that organisms can be patented. I don't love that argument, but the possibility of knowing infringement complects the case somewhat.
However, I'm somewhat comforted by the expressed limitation in the ruling, that it pertains to this case only.
In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed.
> In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed.
I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.
plant patents are a specific type of patent. I am not a fan of Monsanto, Kagan (Kagan implied that the monsanto opinion would not necessarily apply to other self-replicating entities - also correct), or patents in general, but I think this judgement is correct. Congress has broad authority to define and determine what constitutes intellectual property, and it's fairly clear exactly what is protected, and why, in plant patents.
Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates.
The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.
I don't see this case as determining the patent eligibility of biological material generally, nor about answering what happens if patented seed contaminates your field. I feel those issues are driving interest in Monsanto cases, but this isn't one of them.
I'll take a stab at explaining why this was a really boring case.
Roughly, the law allows you to use a patented object as you see fit, that's the "exhaustion doctrine." Patents aren't a full license that controls every aspect of the owners use of an object, it just prevents copying. Well, ok, what if typical use of the object makes a new copy?
Here, the patented object is a seed, where its main inherent function is self-duplication. You could use it for other things, as filler for bean bag chairs, as fuel for a massive fire, as feed, whatever. But the main thing seeds do is reproduce themselves.
So does the exhaustion doctrine apply?
No. The patent system is mainly a DO NOT COPY law. It's not mainly a USE THINGS YOU OWN law. The exhaustion doctrine is an artifact, a patch, to keep DO NOT COPY from getting out of hand.
It should surprise no one what when asked if the DO NOT COPY law means DO NOT COPY, that SCOTUS should reply, "Why, yes, it means exactly that."
I'm not a huge fan of the way Monsanto has aggressively leveraged bio patents against some farmers. Hell, I'm skeptical of the economic utility of state granted monopolies in general. But this case was never realistically addressing any of that. We had a knowing infringer, so none of the most abusive practices. The broader bio patent theories are very well established. (This isn't SCOTUS's first time at the bio patent rodeo.)
The case was a "could you repeat your definition?" "Sure, here's that same definition."
Interesting to see the diverging paths being taken by America and a ton of developed countries, where Monsanto has been removed and banned (Austria, Bulgaria, Germany, Greece, Hungary, Ireland, Japan, Luxembourg, Madeira, New Zealand, Peru, South Australia, Russia, France, and Switzerland)
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
- Farmers still have to buy seeds every year
- Farmers do not have to worry about cross pollination
- Farmers do not have to fear second-hand seeds (this case)
- Seed washers do not have to fear lawsuit + no volume, only no volume
- Monsanto can stop suing everyone
What am I missing, other than Monsanto leaving the door open so they can strengthen their position through the courts like this?
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
It would be disastrous if the "terminator" gene ended up cross pollinating neighboring crops resulting in all subsequent cultivars being contaminated with "terminator" genes...
If I'm reading it (the article, not the decision; IANAL, etc...) correctly, it was decided pretty much as a straightforward contract issue. He had a signed contract with Monsanto not to plant that breed via anything but purchased-from-Monsanto seeds. He tried to get around it by buying and planting bulk soybeans bought from the market. The court said no, that's not OK.
Nowhere did there seem to be a serious issue about the reach of patent law or the breadth of Monsanto's IP.
The Supreme Court only takes on a fraction of the cases that appeal to them. Given the 9-0 ruling and seemingly clearcut contract situation, does anyone know why they chose to take this case in the first place?
Because it answers the question whether replanting the seeds of a patented GMO plant counts as a permissible use under the patent exhaustion doctrine or whether it's patent infringement. Absent this ruling, a court might have concluded that harvesting and replanting was such a typical use of a plant that it could not constitute patent infringement.
(Also, what's the clear-cut contract situation? I don't think there is one in this case.)
This decision rests on the common, but arbitrary view that different generations of organisms are different things, when they can instead be viewed as all the same entity. Of course, that view is not very popular, and would completely destroy any hope of collecting meaningful royalties from non-sterile genetically modified organisms.
This unanimous decision by SCOTUS shows a sickening lack of appreciation for the complexity of the problem. We need more creative and forward-thinking people interpreting our laws.
I'm not a fan of patenting genes in seeds, but in this case he knew that some of the seeds he was buying contained Monsanto seeds, but figured since he was a small fish in a big pond that Monsanto wouldn't mind. In Monsanto's view, they need to protect their investments in R&D.
From the article:
Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. ... He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. 'I couldn't imagine that they'd give a rat's behind,' " he said.
Yes. I've heard (here, I think) of patent trolls that prefer to go after customers rather than producers of whatever is supposedly infringing, because it's easier to convince the smaller customers to settle out of court rather than fighting and getting the patents declared invalid.
Absolutely disgusting!!!
The very notion of "copyright" being applied to life forms is the antithesis of freedom.
A clear case of government, of the corporation, by the corporation, for the corporation.
The People be damned!
Soybeans are living beings, and have been around longer than Monsanto, and the US government, combined.
As such, humanity in general should claim infringement of our unalienable right to cultivate whichever seeds we find upon the face of the Earth, without fear of prosecution by multi-national corporate interests.
I haven't thought about it enough to decide whether I'm for or against patenting genetic modifications.
That said, the farmer in this case knew what he was getting into when he signed up with Monsanto. He obviously supports the concept because he was buying patented, modified seeds from Monsanto. He signed the contract with them, then he broke his end of the deal. It seems like an open and shut case.
I'm always curious about one detail in these cases. There is only a real benefit if they're using Roundup, right? Are they also under agreement when they purchase the pesticides?
IP is one of the last economic sectors where the US has a commanding lead. Of course the US government is going to strongly protect IP, and seek more trade agreements around the world to respects its IP, because otherwise its trading deficit would unravel faster and wages in the US would be rapidly depressed towards the average in the world: $75 a day (for official wage earners ... for many people in the world it's more like $2 a day).
In turn this would probably lower the demand for US dollars, as the US government would be getting less revenue in $ from the working class whereas the investor class would probably diversify more around the world.
The funny thing is that, even as the US pushes for more countries to work with it to enforce IP (such as the crackdown on MegaUpload), it doesn't enforce many trademarks from other countries: http://www.forbes.com/sites/larryolmsted/2012/04/12/foods-bi...
I don't think you understand how IP works. You think that in a national security sense, our IP laws keep our economy ahead of other countries? What, they're bound by those laws?
[+] [-] grellas|13 years ago|reply
The farmer here knew of Monsanto's license by which you could buy their genetically-altered (patented) seeds for the purpose of planting one crop only and selling that crop, with the need each year to buy more of the patented seeds from Monsanto directly or from one of its authorized resellers and with a specific prohibition on any form of replanting. Each year, he routinely bought these seeds and planted them in accordance with the license restrictions for his primary crop. For his secondary crop each year for eight years running, though, he bought seeds generically on resale from a grain elevator, planted them in a such a way as to isolate which parts of the resulting crop were from the Monsanto seeds, and, through a continual culling process, regularly wound up planting these Monsanto seeds for an 8-year period so as to get the benefits of the patented seeds without having to buy them from Monsanto or a Monsanto dealer. When he got sued over this, he argued that the "bean did it" by claiming that he did not himself "make" or "create" an infringing product so as to infringe Monsanto's patent but rather forces of nature over which he had no control created the new product, thereby absolving him for any responsibility for infringement.
People often mock the law for its occasional absurdities and for its bone-crushing processes, and rightly so. But most U.S. law at its core is grounded in sound principles that make a lot of sense, and the case here represents one such instance.
Granting the premise of patent laws that an inventor is to have monopoly protection for a prescribed period in order to profit from his invention, it makes perfect sense that the patent exhaustion doctrine should not be interpreted such that, after but a single sale of the product that benefits the patent holder, others can simply make copies of the product for sale or use directly and without compensating the patent holder in any way. Now, some may support such an outcome in the name of sticking a thumb in the eye of patent holders but, given that U.S. courts do not have a mission to subvert the patent laws and instead seek to uphold them as the law of the land, those courts cannot really abide such a result. Instead, they will say that the farmer's argument here that the "bean did it" is pure sophistry and a way of subverting the plain purpose of the law. That is exactly what the U.S. Supreme Court did here. And that is why it was unanimous. By legal standards, it really was not a close call.
In the words of the Court: "In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct."
All that said, the court was very careful to note that its ruling does not in any way apply to all forms of 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." Thus, the ruling was not a knee-jerk upholding of maximum protection for the patent laws. The court seems more than ready to keep an open mind when it comes to changing technology. It simply was not ready to give sanction to a clever interpretation of law that would have undercut the very fundamentals of why the law existed in the first place.
[+] [-] Dylan16807|13 years ago|reply
I'm fine with patents involving biology in general. And I'm fine with the court blocking you from creating patented devices via some Rube Goldberg machine to try to absolve yourself of responsibility.
But we're talking about a plant sitting by itself with no external input.
Nothing a plant is capable of doing should be novel or non-obvious. A patent on creating the GM seeds with human tools? Sounds great. A patent on cell division copying whatever lies in front of it? Ridiculous.
[+] [-] mjt0229|13 years ago|reply
However, I'm somewhat comforted by the expressed limitation in the ruling, that it pertains to this case only.
In the end, I can't say I'm informed enough to defend my opinion on this case, but I have to say that I'm disappointed.
[+] [-] bostonpete|13 years ago|reply
I agree whole-heartedly. I don't like the makeup of the court, dislike everything I've ever heard about Monsanto, and have serious reservations about patented organisms. Even so, I have a hard time impugning any unanimous ruling by SCOTUS.
[+] [-] dnautics|13 years ago|reply
Myriad genetics is attempting to use a "molecule" patent to protect a "technique". In the strictest sense, under the current patent regime, they should be allowed to restrict other people from running analysis to detect the allele USING THE PCR PRODUCT. Since the patent is not a method patent, other people should be allowed to run tests on the same allele, for example using an Affymetrix chip, which is what 23andMe uses and does not create the molecule that Myriad's PCR method creates.
The irony is that Myriad chose the molecule patent because it's more watertight than method patents to break, but coming up with "related" PCR products to break the molecule patent would be trivial.
[+] [-] brownbat|13 years ago|reply
I'll take a stab at explaining why this was a really boring case.
Roughly, the law allows you to use a patented object as you see fit, that's the "exhaustion doctrine." Patents aren't a full license that controls every aspect of the owners use of an object, it just prevents copying. Well, ok, what if typical use of the object makes a new copy?
Here, the patented object is a seed, where its main inherent function is self-duplication. You could use it for other things, as filler for bean bag chairs, as fuel for a massive fire, as feed, whatever. But the main thing seeds do is reproduce themselves.
So does the exhaustion doctrine apply?
No. The patent system is mainly a DO NOT COPY law. It's not mainly a USE THINGS YOU OWN law. The exhaustion doctrine is an artifact, a patch, to keep DO NOT COPY from getting out of hand.
It should surprise no one what when asked if the DO NOT COPY law means DO NOT COPY, that SCOTUS should reply, "Why, yes, it means exactly that."
I'm not a huge fan of the way Monsanto has aggressively leveraged bio patents against some farmers. Hell, I'm skeptical of the economic utility of state granted monopolies in general. But this case was never realistically addressing any of that. We had a knowing infringer, so none of the most abusive practices. The broader bio patent theories are very well established. (This isn't SCOTUS's first time at the bio patent rodeo.)
The case was a "could you repeat your definition?" "Sure, here's that same definition."
[+] [-] grecy|13 years ago|reply
[+] [-] gnoway|13 years ago|reply
Monsanto is sitting on a 'terminator' capability that allows them to make second-generations seeds sterile. They don't use it, obviously, but wouldn't it be better for consumers if they did?
- Farmers still have to buy seeds every year - Farmers do not have to worry about cross pollination - Farmers do not have to fear second-hand seeds (this case) - Seed washers do not have to fear lawsuit + no volume, only no volume - Monsanto can stop suing everyone
What am I missing, other than Monsanto leaving the door open so they can strengthen their position through the courts like this?
[+] [-] D9u|13 years ago|reply
It would be disastrous if the "terminator" gene ended up cross pollinating neighboring crops resulting in all subsequent cultivars being contaminated with "terminator" genes...
[+] [-] DigitalJack|13 years ago|reply
Seems like something that would get out of hand.
[+] [-] droithomme|13 years ago|reply
[+] [-] ajross|13 years ago|reply
Nowhere did there seem to be a serious issue about the reach of patent law or the breadth of Monsanto's IP.
[+] [-] ricree|13 years ago|reply
[+] [-] pdabbadabba|13 years ago|reply
(Also, what's the clear-cut contract situation? I don't think there is one in this case.)
[+] [-] harshreality|13 years ago|reply
This unanimous decision by SCOTUS shows a sickening lack of appreciation for the complexity of the problem. We need more creative and forward-thinking people interpreting our laws.
[+] [-] codgercoder|13 years ago|reply
[+] [-] jwcooper|13 years ago|reply
From the article:
Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. ... He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. 'I couldn't imagine that they'd give a rat's behind,' " he said.
[+] [-] tbrownaw|13 years ago|reply
[+] [-] jlarocco|13 years ago|reply
The farmer here had signed an agreement with Monsanto, and knew the second hand seeds he was buying were covered by Monsanto's patent.
If the farmer had never signed an agreement with Monsanto the case may have turned out differently.
[+] [-] OGinparadise|13 years ago|reply
[+] [-] D9u|13 years ago|reply
A clear case of government, of the corporation, by the corporation, for the corporation. The People be damned!
Soybeans are living beings, and have been around longer than Monsanto, and the US government, combined. As such, humanity in general should claim infringement of our unalienable right to cultivate whichever seeds we find upon the face of the Earth, without fear of prosecution by multi-national corporate interests.
[+] [-] jlarocco|13 years ago|reply
That said, the farmer in this case knew what he was getting into when he signed up with Monsanto. He obviously supports the concept because he was buying patented, modified seeds from Monsanto. He signed the contract with them, then he broke his end of the deal. It seems like an open and shut case.
[+] [-] protomyth|13 years ago|reply
or hear the oral arguments: http://www.supremecourt.gov/oral_arguments/argument_audio_de...
[+] [-] yaddayadda|13 years ago|reply
[+] [-] LanceH|13 years ago|reply
[+] [-] ryanmerket|13 years ago|reply
[+] [-] splawn|13 years ago|reply
[+] [-] EGreg|13 years ago|reply
Source: http://www.bbc.co.uk/news/magazine-17512040
In turn this would probably lower the demand for US dollars, as the US government would be getting less revenue in $ from the working class whereas the investor class would probably diversify more around the world.
The funny thing is that, even as the US pushes for more countries to work with it to enforce IP (such as the crackdown on MegaUpload), it doesn't enforce many trademarks from other countries: http://www.forbes.com/sites/larryolmsted/2012/04/12/foods-bi...
[+] [-] jbooth|13 years ago|reply
[+] [-] unknown|13 years ago|reply
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