Supreme Court to Rule on Genetics Patents

[wiggin]

I think you need to do a bit more work to get people accept the argument that Monsanto, and by extension the biotech industry, cannot exist unless it sues farmers for 80,000 for (unknowingly?) buying contaminated grain.

I never said that! I have consistently said that in this case, though I don't know all of the details, it appears on first glance to be tough to take Monsanto's position - the farmer shouldn't be sued, perhaps the grain elevator operators (or whoever knowingly sold them the GM seed) are responsible. My entire discussion with RB is about the broader issue of whether Monsanto has any right to pursue infringement cases for people who knowingly produce GM seeds for profit.

[Steely Glint]

But is this case not actually emblematic of the problems of trying to enforce traditional patent restrictions on genetic material?

[RandBlade]

Okay, so you're essentially dooming the entire food biotechnology industry. I guess that means we'll have to come up with another way to feed 9-10 billion people by 2050. The only way to really work it your way is for Monsanto to get directly into agriculture through vertical integration - buy up lots of land, plant their own engineered crops and control the seedstock at every stage. Obviously that's not going to happen.

Just because an industry has 'always worked' some way doesn't mean it can't be changed if a new and better technology comes along. This is simple patent protection for a very expensive technology; I don't see why you have a problem with them pursuing infringement cases. If farmers want access to engineered seeds (which dramatically increase their yields and profits), they have to be willing to respect the patents of the creators of this technology.

For first generation sure. But the issue is the cross-contamination into the second-generation and beyond.

Technology has improved throughout the eras. Monsato has plenty of options available to it without shutting down pre-existing production techniques - just off the top of my head:
1: Generate a product that doesn't produce seeds.
2: Constrain (and sue) its own customers who've distributed seeds - not those who've bought through normal means.
3: Don't sell their product at all and instead go into the farming industry using it themselves and thus not violating their own patents by contaminating.
4: Seeking research grants etc
5: Profitting from first-generation sales.

Just because I generate an amazing new use for water doesn't mean I can prevent anyone else from using water as they always have.

[Khendraja'aro]

1: Generate a product that doesn't produce seeds.

You mean: Produce infertile seeds.

Because growing stuff like wheat without seeds... would be like selling eggs with neither egg white nor yolk.

[GGT]

It'll be interesting to see if they revisit the definition of "Make" and "Use" in the contracts (and signing Technology Agreements). Monsanto wants their Patent to cover first generation seed and progeny seeds, by addressing how they're 'made' and 'used'. But wouldn't that be something contract law should cover?

Monsanto agreed to let farmers use second-generation seeds as a commodity (like animal feed), and/or sell them back to the grain distributors, who'd then be allowed to sell those seeds as commodities but not for planting. Isn't that treating the legacy seeds the same as the original, so the Patent would essentially never expire?

If Monsanto also owns herbicide patents (and/or contracts for use, like Round Up)....wouldn't that force farmers to buy Roundup-Ready seeds, or risk losing chunks of their crops to herbicide death?

[wiggin]

But is this case not actually emblematic of the problems of trying to enforce traditional patent restrictions on genetic material?

I think this case is emblematic of the eagerness of Monsanto's lawyers to justify their job. They can readily pursue aggressive legal action against infringers without resorting to poorly targeted cases like this.

Technology has improved throughout the eras. Monsato has plenty of options available to it without shutting down pre-existing production techniques - just off the top of my head:
1: Generate a product that doesn't produce seeds.
2: Constrain (and sue) its own customers who've distributed seeds - not those who've bought through normal means.
3: Don't sell their product at all and instead go into the farming industry using it themselves and thus not violating their own patents by contaminating.
4: Seeking research grants etc
5: Profitting from first-generation sales.

Let's take these one by one.

1. That's absurd, most of the actual product is the seed. Even if you were to take Khendra's charitable interpretation, that would be fantastically difficult and potentially impossible for a whole host of species. Their costs would skyrocket for an ill-judged copy protection scheme.
2. I have already suggested this. If you follow this reasoning, it implies that the basic idea of patents on second generation GMOs is 100% defensible, they just need to target their lawsuits better. Agreed.
3. This is such a horrible idea I'm not even sure why it's here. Not only would there be potential antitrust issues developing this kind of vertical monopoly, and not only would the resultant company be a disaster given its lack of focus and gargantuan size... but it is also, in the final analysis, unworkable. The seeds are often still viable in the food stage. Are you going to make Monsanto run a chain of restaurants that thoroughly cooks all of their food before giving it to diners? Own most of the livestock in the world? Have representatives in every kitchen? This is absurd.
4. How can you possibly think it's a good idea for the government to provide annual multibillion dollar research grants to a giant company? The development costs of new GMOs are not trifling, and this kind of subsidy would be foolish on so many ways I can't even count - picking winners, discouraging entry into the market, etc etc.
5. This is laughable. After the first truckload of seeds are sold, they won't make another dime. The required price for each seed would be astronomical. No one would pay it, because the seeds would have no resale value (they'd face the same second-generation issues Monsanto would, but without monopoly pricing power. With marginal production costs of seeds being so low, competition would rapidly destroy any profit margin).

Just because I generate an amazing new use for water doesn't mean I can prevent anyone else from using water as they always have.

This is not analogous. They aren't coming up with another use for corn; they are engineering an entirely new species of corn in the first place. This is not a process, it is a product.

[RandBlade]

This is not a process, it is a product.

Dubious. If it is the case that it is a completely alien product and they can sue farmers like this the case organic farmers should be able to sue/counter-sue Monsanto for tainting the grain escalators with their product.

[wiggin]

Dubious. If it is the case that it is a completely alien product and they can sue farmers like this the case organic farmers should be able to sue/counter-sue Monsanto for tainting the grain escalators with their product.

How is this dubious? They aren't selling people the process to create GMOs - that's incredibly sophisticated and expensive. They're just selling the seed, and (like any other patented product) limiting the ability of the buyer to freely copy their product for profit.

Regardless, if Monsanto intentionally contaminated a grain elevator, I think there would indeed be grounds for a countersuit (though not on infringement grounds). To my knowledge, though, that is not the case.

[RandBlade]

How is this dubious? They aren't selling people the process to create GMOs - that's incredibly sophisticated and expensive. They're just selling the seed, and (like any other patented product) limiting the ability of the buyer to freely copy their product for profit.

Regardless, if Monsanto intentionally contaminated a grain elevator, I think there would indeed be grounds for a countersuit (though not on infringement grounds). To my knowledge, though, that is not the case.

Nothing in the OP shows that the farmer intentionally bought contaminated seeds either. If the OP can have his seeds tested and be sued for using infringing goods, then farmers should in reverse be able to sue Monsanto for contaminating their supply chain.

[wiggin]

Nothing in the OP shows that the farmer intentionally bought contaminated seeds either. If the OP can have his seeds tested and be sued for using infringing goods, then farmers should in reverse be able to sue Monsanto for contaminating their supply chain.

I don't disagree about the farmer in this case - haven't I said so nearly every post in this thread? Without a full knowledge of the case, I can't be sure, but this does not seem like a case of willful infringement. I don't think that the farmer can sue Monsanto either, unless he can prove willful contamination of the supply chain by Monsanto. It's likely that there's a bad actor here - whoever sold the seed to the elevator is the infringer here, and they are the person who should pay damages. In other cases, if indeed Monsanto is intentionally introducing GMOs into the supply chain, I would agree that they are open for a lawsuit - to my knowledge, this is not the case.

[GGT]

The grain elevator operator and Farmer Brown signed "Technology Agreements". Monsanto claims that protects their patent from 1st generation onward, even in contracts between seed sellers and seed buyers. They're restricting "use" and "make" with those contracts, and trying to force patent protection that basically never exhausts itself. That's the way Monsanto's pov on scotusblog comes across to me, anyway.

[GGT]

wiggin, your posts seem to coincide with Monsanto's:

4. Petitioner also contends (Pet. 9, 17-18) that the court of appeals’ decision will eliminate commodity soybeans as a low-cost alternative for second-crop plantings, and will otherwise alter traditional farming practices. For at least two reasons, those policy consid erations do not warrant this Court’s review.

First, Congress is better equipped than is this Court to weigh petitioner’s concerns against the countervailing considerations that support continuing patent protection in this context. If petitioner’s view were adopted, the first authorized sale of a single Roundup Ready soybean would extinguish all of respondent’s patent rights to that soybean and to its progeny. Although respondent might still have contractual remedies against persons with whom it is in privity, any patent protection “would effectively be lost as soon as the first generation of the product was introduced into the market.” Br. in Opp. 3; see Scruggs, 459 F.3d at 1336 (“Applying the first sale doctrine to subsequent generations of self-replicating technology would eviscerate the rights of the patent holder.”). The incentive to invest in innovation and re- search might well be diminished if the patent term for genetically modified crops was effectively reduced from 20 years to a single year or even a single growing sea- son. Cf. Diamond v. Chakrabarty, 447 U.S. 303, 307 (1980) (“The patent laws promote * * * progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research ef- forts.”). Congress is better positioned to weigh the in- terests of biotechnology firms, agricultural workers, and the public, as it presumably did in crafting a limited seed-saving exemption to the PVPA.


Second, the crux of petitioner’s theory is that, not- withstanding respondent’s right to exclude others from “making” Roundup Ready seed, persons who have acquired such seed through an authorized sale may law- fully create new generations by exploiting the seeds’ self-replicating properties. Very few judicial decisions have applied patent-exhaustion principles to self- replicating technologies, and the limited case law in this area has centered on soybeans. If this Court granted certiorari, however, its decision could also affect the en- forcement of patents for man-made cell lines, DNA mol- ecules, nanotechnologies, organic computers, and other technologies that involve self-replicating features. The Court should allow the case law to develop further be- fore considering whether to adopt a more restrictive definition of “making” that could have unforeseen con- sequences for other present and future self-replicating technologies. Cf. Bilski v. Kappos, 130 S. Ct. 3218, 3227 (2010) (recognizing that “[t]echnology and other innova- tions progress in unexpected ways”).

http://sblog.s3.amazonaws.com/wp-con...us-8-23-12.pdf


Interesting to read, even with the legalese.

[RandBlade]

I don't disagree about the farmer in this case - haven't I said so nearly every post in this thread? Without a full knowledge of the case, I can't be sure, but this does not seem like a case of willful infringement. I don't think that the farmer can sue Monsanto either, unless he can prove willful contamination of the supply chain by Monsanto. It's likely that there's a bad actor here - whoever sold the seed to the elevator is the infringer here, and they are the person who should pay damages. In other cases, if indeed Monsanto is intentionally introducing GMOs into the supply chain, I would agree that they are open for a lawsuit - to my knowledge, this is not the case.

In that case it seems like we're coming at it from different angles but we agree.

The issue you have with seeds as a living organism is that once the genie is out of the bottle you can't realistically stop it spreading. Monsanto should not be allowed to test other farmers seeds like this for their genetic markers unless they can first prove already wilful infringement. Furthermore if/once seeds get into grain elevators then farmers should be able to use those grains freely and the grain elevator shouldn't be required to do anything special they wouldn't already have to either.

Monsanto should be able to sue whoever violated their agreements, but the farmer and grain elevator (and anyone who subsequently purchases from the grain elevator) are not at fault for Monsanto's lousy business model. If Monsanto can't make a profit once they've unleashed the genie then so be it they can go bankrupt like any other private entity.

[wiggin]

In that case it seems like we're coming at it from different angles but we agree.

The issue you have with seeds as a living organism is that once the genie is out of the bottle you can't realistically stop it spreading. Monsanto should not be allowed to test other farmers seeds like this for their genetic markers unless they can first prove already wilful infringement. Furthermore if/once seeds get into grain elevators then farmers should be able to use those grains freely and the grain elevator shouldn't be required to do anything special they wouldn't already have to either.

Monsanto should be able to sue whoever violated their agreements, but the farmer and grain elevator (and anyone who subsequently purchases from the grain elevator) are not at fault for Monsanto's lousy business model. If Monsanto can't make a profit once they've unleashed the genie then so be it they can go bankrupt like any other private entity.

I strongly disagree with your last paragraph here. The issue isn't a 'lousy business model'. The issue is that the government has a responsibility to enforce property rights, including those of patent holders. Just because the technology copies itself doesn't mean you have a right to use those copies for profit. Private entities should not go bankrupt because their technology is stolen.

On the broader point about who can sue who, I think we have more agreement. I am not sure that the grain elevator operator should get off scot-free though. The individual farmer has neither the resources nor the ability to vet the seeds, but the grain elevator has some level of responsibility IMO. Just like one would be liable for selling stolen (or knock-off) goods through negligence, I think the grain elevator has a responsibility to do some due diligence. The paperwork is probably not that hard to cover their asses.

Perhaps a way to help solve this issue and improve what you see as a 'lousy business model' is for Monsanto to provide free testing to grain elevator operators and the like to check each batch that's sold to them. I imagine it wouldn't cost Monsanto that much, and it would be better able to pin the blame on perpetrators. Obviously this would be voluntary, but Monsanto would stipulate that agreement would give them immunity from infringement lawsuits. Sound reasonable?

[RandBlade]

How are the grain elevators supposed to check? My understanding is that their model is more like a charity shop taking the discards of others then offering it back for cheap. They mix it all in together too I believe and won't have the funds to undergo expensive testing nor why should they? Its not their fault this new products arrived. How much testing do they do for stolens seeds currently?

I like your solution in the final paragraph but Monsanto should incur 100% of the costs. How would you deal with if mixed batches arrive as one batch?

[wiggin]

How are the grain elevators supposed to check? My understanding is that their model is more like a charity shop taking the discards of others then offering it back for cheap. They mix it all in together too I believe and won't have the funds to undergo expensive testing nor why should they? Its not their fault this new products arrived. How much testing do they do for stolens seeds currently?

I was thinking more along the line of import/export licenses. E.g. just have the people who sell them seeds sign off that it's legit, or if it's GMO provide paperwork that it's legal for the use. Take small samples of each batch and save them for testing if a suspicion arises, so they can potentially trace back to the source of the contamination.

The point isn't for them to incur huge additional costs, but just to keep somewhat better track of where the seeds are coming from. It's mostly a paperwork burden, but it would cover their butts if something goes wrong, and would allow for much easier pursuit after the actual infringers. It ensures that they are doing due diligence and not knowingly mixing GM seeds with unmodified ones, which helps out everyone (not just Monsanto; those organic freaks wouldn't want GM food on their plate, would they?).

BTW, most grain elevators are NOT charities (though they may be cooperatively owned). They buy from farmers at market prices and profit from the spread between that and futures contracts. A small portion sometimes gets sold back to farmers for replanting.

I like your solution in the final paragraph but Monsanto should incur 100% of the costs. How would you deal with if mixed batches arrive as one batch?

I think the question of who covers the costs is a complex one, but Monsanto probably has deep enough pockets to completely pay for it.

If a mixed batch arrives which is not labeled as such, it's an attempt to infringe and should be treated as such. If it's labeled as such, it should be dumped into the GMO section and reserved for food rather than replanting.