Monsanto owns a patent on certain soybean seeds. They sell 1G seeds to farmers, allowing the farmers to grow them into 2G seeds. The farmers are not licensed to plant the 2G seeds. Bowman bought some 2G seeds and planted them, and Monsanto sued.

Bowman says that the planting of 2G seeds is permitted under the doctrine of "patent exhaustion." According to that doctrine, if a patented physical object is sold under proper license, then a patent lawsuit involving that same physical object is not permitted, even if the object is sold to someone else.

The lower court said that patent exhaustion doesn't apply to the 2G seeds, because Monsanto only granted a license on the 1G seeds. The 1G seeds are not the same physical object as the 2G seeds.

At first I thought this was a simple case, but Bowman is making a very interesting argument in the Supreme Court. It is based on an old case called Quanta.

In Quanta, the patent was directed to a certain computer process, and the patent owner sold computer chips with circuitry for performing that process. The chips themselves were useless, of course, but they just needed to be combined with some standard hardware and turned on to work. Did this mean that, by adding the extra hardware, a new physical object had been made that could be the subject of a lawsuit? The Supreme Court said no: because the chips "embodied" the patented invention and only required standard hardware to be added, the chips invoked patent exhaustion, so lawsuits based on their further use were barred.

Bowman's argument: the 1G seeds "embody" the invention (by having the DNA and biological machinery to produce 2G seeds), and only "standard hardware" (soil, watering, etc.) needs to be added to get the working invention (the 2G seeds), so therefore the 2G seeds fall under patent exhaustion.

The main counterargument is that in Quanta, the original computer chips were still present and intact, whereas the 2G seeds do not include the 1G seeds intact. This requires a narrower interpretation of Quanta, and I could see the Supreme Court going with either this narrower reading or Bowman's broader one.

(For fun, you can try to come up with hypothetical cases that are in between: what if the patentee in Quanta had sold semiconductor masks for making chips?)

EDIT: One could say that those pigs could be considered prior art... even so, you have a multibillion multinational company vs several small family farmers. Who's going to pay the lawyers to defend the family farmers... even to show prior "art"? What realm of delusion and craziness do we have to go to stop arguing about this?

EDIT 2: "patenting specific modifications" tries to imply patenting a process, and fails. "patenting certain DNA sequences" implies patenting the end result of a process.

EDIT 3: I don't have a problem with them having a patent on a particular process to generate the DNA sequences so long as the process reliably results in the organism having the desired DNA sequence. Otherwise the patent would be for a generic process to modify DNA sequences. These patents restrict the use of the methods but not the end results. Monsanto wants to charge and claim ownership of any organism that has the desired DNA sequences. Monsantos business model is flawed and the patent system should not be used to protect Monsantos revenue streams.

If Monsanto patented the process itself to create these dna sequences, the German farmers would not be infringing on their patent because they use completely different processes to produce the DNA: one is generated in a lab, the other is consummated in a sty.

If Monsanto found this strain of DNA and managed to reproduce it in a lab and developed a process of mass production, there is no reason they should not be able to profit from the endeavor. There is also no reason why they should be able to sue the farmers. The farmers aren't using their process for producing the dna sequences.

The fact that they could patent the sequences and sue the farmers speaks volumes about the broken state of patents. (As most everyone in tech already knew)

It would seem a patent on sequence only would be the patenting of information/expression alone which would fall under copyright rather than patent.

What do you think about changing civil suits like this (that someone has stolen someone else's "property") to require a criminal conviction first? What other ideas do you have for "fixing" this problem?

Which part of 'modifying a natural organism and patenting that modification which then can spread through the normal means of natural replication is fundamentally wrong' is it that is giving you problems?

I know the patent is legit, I understand that such patents are common and that is exactly where I see the problem.

What the far reaching consequences are is beyond my grasp, all I see is a money grab by a very large company at the expense of those that do the hard work to feed us, and that they are concentrating on staple foods because getting a substantial royalty on staple foods puts the world at their feet.

See 'basmati' and a bunch of other stunts they've tried.

Here's the deal: farmers are under zero obligation to use genetically modified seeds. They are free to use traditional seeds. Why don't they do that, then? Because Monsanto's technology is a really, really good deal for them! It produces better yields at lower costs. It is not ridiculous to establish legal systems that protect the further development of such technologies and your small-farmer-versus-the-mega-corp Disney movie synopsis adds nothing to the conversation.

It's fun an games when we laugh about the patent wars between Google/Samsung and Apple. But our food supply? I'll be the first to grab a torch and a pitchfork. Fark Monsanto.

Truly, these institutions of capital and ~=SCIENCE=~ are more worthy of our aid than the starving, the poor, and the destitute humans across the world.

EDIT: Do you support software patents? All this seems to be doing is reprogramming a living organism, no?

Without Monsanto, the hardy seeds in this case wouldn't even exist. The patent here isn't just protecting Monsanto from poor destitute farmers (and suing farmers is a terrible PR move for Monsanto here). What it's really protecting Monsanto from the inevitable copycat company that would come along, buy a bag of Monsanto seeds, and cultivate them, undercutting Monsanto on price because they didn't have to put in any capital investment.

Be careful here--this is not an airtight statement. Many of the innovations are arguably simply correcting earlier innovations...mass insulin production is a great feat, but how much of that is used to fix diabetes caused by overconsumption of bad food? How much agriculture research is spent making poorly-processed food more palatable, or making crops resistant to synthetic pesticides?

A lot of innovation may simply be correcting problems that didn't exist before some other innovation happened.

They work in fields where scientific innovation is very expensive, and keep working because there is a potential return on their investment.

Perhaps we should find ways of driving the cost of innovation down? Like, say, loosening patent and licensing burdens to make equipment more easily attainable?

What it's really protecting Monsanto from the inevitable copycat company that would come along, buy a bag of Monsanto seeds, and cultivate them, undercutting Monsanto on price because they didn't have to put in any capital investment.

Agreed, but I do not see the necessary harm in this--again, having a strong brand and good distribution networks and quality products is how they can protect themselves against such a thing. In an optimized market, profit margins are indeed slim--and I suggest that for food production we want an optimized market.

wow, this is a stretch. You realize that there is also Type I (juvenile) diabetes that is an auto-immune/genetic disorder that has nothing to do with unhealthy eating? GMO-produced human insulin (and subsequent engineered insulin analogs that are faster-acting) were major milestone for making that disease into a lifelong treatable condition. As someone with a father who is a juvenile diabetic now pushing into his 60s I'm pretty glad we're OK making capital investments in hard sciences.

A very small portion of R&D budgets go to patent licensing. At the end of the day, what's expensive is that hundreds of PhD's expect to make six figure salaries even if their work is benefitting mankind.

> Agreed, but I do not see the necessary harm in this--again, having a strong brand and good distribution networks and quality products is how they can protect themselves against such a thing

Well now you're trading one kind of IP (patents) for another (Trademark). And what if the other company that swoops in is Con Agra?

Given the extremity of the consequences and the enormity of the benefits that the biological sciences could provide us; it is worth questioning a regulatory regime that provides such painful distortions of society and that seems to act as much to prevent the benefits from being widespread as it does to allow the researchers to evade liability for the negative externalities.

Should chemists have not been allowed to patent the Haber Process? That is a chemical reaction. If chemical reactions are occuring all around us, isnt it disgusting to be able to patent it? No, because patenting a scientific process is a (the?) legitimate patent use case.

pull to refresh is a disgusting patent. Any of the patents mentioned recently by Samsung or Apple are disgusting. This isn't.

It seems they've patented the result of a process, not the process itself. The seeds the farmer bought are patented.

The owner of the Haber Process patent has no say in what the ammonia gets used for after they have sold said ammonia. Nor should they.

However, if they did patent the organism itself, or the result of the process (as e40 said in a sibling comment), then I am against this type patent.

Personally, I think IP law should be small and narrowly defined. I think that patents are valid when it is a scientific (ie non-trivial) process that has a limited duration.

EDIT: After thinking about it, I think the distinction comes down to this: are they selling it? if so they have no ownership rights on the next generation of seeds. Are they licensing it? If so, yes they do have ownership of the next generation of seeds. In that case, they are licensing to you a manufacturing process where you are allowed to sell the output, but you do not own the process itself.

I like that distinction between selling and licensing. It clears things up a bit and also exposes the ridiculous/terrifying consequences of being able to license lifeforms.

We're certainly not far away from modification of humans, at least in small ways, so we better have it figured out by then. If you, through some patented process, gave your children some genes for disease resistance the legal framework in place for agriculture would have the preposterous effect of giving patent holders control over how they were allowed to reproduce. Bit of hyperbolic example surely, but still an instructive one IMO.

But that's not what happened. Without Monsanto, the glyophosphate resistant seeds in question would not exist. The farmer in question was free to use regular old soybean seeds and get regular old soybeans. Nobody forced him to use Monsanto's seeds--he did so because he got a benefit from them, a benefit that was the result of Monsanto's invention and its investment in R&D.

It's not so black-and-white as this. You can typically buy excess seeds from the local grain elevator for replanting; these now contain an unseperable proportion of the descendants of Monsanto's seeds, so it's at least become lot harder not to use any of them.

In other cases (not this one), the farmer's field has been cross-contaminated from nearby fields of GMO soy, so they have been forced to use the descendants of Monsanto seed. Are these cases different? Why, in patent law? (Patent infringement does not require intent).

The environment that Monsanto are trying to create is one in which you must pay a royalty to Monsanto if your crop contains any of the descendants of their seeds, and where completely avoiding their seeds is impossible or at least very difficult (and imposes new costs).

So, we agree it seems.

Seeds -> procreation -> more seeds.

You missed the bit about splitting legal hairs. I know that lawyers love to do just that but this is food we're talking about, not words on paper.

[special seeds + special herbicide] -> procreation -> [special seeds + special herbicide]

Which would otherwise be:

seeds -> procreation -> more seeds.

Whether you think that's a good thing or not is another story. Or maybe you think farmers should be able to save GMO seeds. I won't argue with you there, but the process of farming most definitely has changed, and it's not the same as it was thousands of years go.

The only way that the people this directly affects can get on with their lives is by "splitting legal hairs". You can't just say "I disbelieve" and suddenly disempower all systems you disagree with.

Me: Judges, patent lawyers, regular lawyers.

You: farmers.

If Monsanto is wrong and they have no such legal right, that's fine. They'll lose in court, or at least they ought to. But you're making it seem like we should put a thumb on the scale in favor of farmers, just because they're farmers. Everyone takes advantage of the law when it serves their purposes. Indeed, a tremendous amount of law is traceable to serving the purposes of farmers (versus say hunters/gatherers). Indeed, even things we think of as modern instruments, like derivatives contracts, have their roots in farming.

I should note: I don't disagree that Monsanto shouldn't have a claim when farmers don't know their seeds have GMO DNA, either as a result of cross-pollination or not knowing the origins of the seeds. I think it's a weakness of the patent system that "intent" doesn't count for anything.

This might be one of my all-time favorite HN comments, because it's caused me to imagine how weird real property would look to the hunter-gatherer only used to personal property, and all the arguments they would use to make against the concept of real property.

One can see the hunter-gatherers gathered up around Hunter News long ago:

* Some farmer somewhere has decided that the crops he just left laying around are somehow his! Well, that makes no sense. If they were his, he should have kept them on his person! Everyone knows that! It's perfectly obvious that things you leave lying around belong to everyone and the next person who can pick it up gets to use it!

* They call it "real property" but it's not "property" -- you can't take it with you! Duh!

* Oh, sure, they try to say the ways it's like personal property, like the person who made it has a moral right to it, or that they wouldn't have built that house if they didn't get to keep it. Balderdash!

* Someone explain to me why you even need "real property" for society to function. It seems we didn't have it for thousands of years and everything worked okay!

* Did you know that under "real property" you can be excluded from certain land, just because someone else "says" it's theirs?

* What are they going to do, put a cop on every single piece of land to make sure no one trespasses? This will collapse under its own weight.

The interesting part is that most developed countries do still have structures in place to explicitly restrict the ability of landowners from preventing access to certain land. Either in the form of laws, or through public ownership.

E.g. in Norway there's a concept called "allemannsretten" ("public rights") that explicitly guarantee the right of the public to access "utmark" which is effectively any non-built-up part of land outside of urban cores. On top of that, there are special building restrictions on building near the coast line to ensure public access to beaches or the sea in general. Not only can you walk through any forest you please, no matter whether someone owns it, but you can gather berries or mushrooms there without obtaining permission. You do however generally need their permission to hunt.

In the US and elsewhere it is more commonly provided for through massive government ownership. E.g. federal land in the US makes up a massive 28% of the land mass. In the UK the Crown Estate owns more than half the coast, and massive amounts of other land, etc.

But while we've shifted substantially towards favouring private land owners, we still recognise that unfettered private property rights substantially restricts the freedom of movement of others.

Monsanto claims those seeds are their intellectual property, when actually it is the process of modifying the seeds that they came up with. So they are claiming trespassing where in my view there is no such thing happening, they are claiming trespass on a public road.

Me: Judges, patent lawyers, regular lawyers.

You: farmers

Rayiner is right: that was a very flimsy argument. You should concede it instead of pretending you didn't make it.

The groups of people that I indicated that were splitting legal hairs over this can be divided into those that make a living splitting legal hairs and those that make a living plowing earth. If you feel that the latter are undeserving of protection against the former then fine, I concede. Personally I think that they should be allowed to get on with their lives without the IP battle being extended to their fields (pun intended).

It serves no purpose and I don't think that anything good can/will come of it, and potentially some very bad stuff may be the end result.

Feel free to disagree with that.

That was Rayiner's response to you and it seems self-evidently true. We strive towards a rule of law, not a rule of farmers, or a rule of philosopher kings who pick the meritorious occupations and penalize the rest.

Vernon Bowman didn't simply plant Roundup-Ready seeds by accident. He purchased clearly-marked Roundup-Ready seeds at commodity seed prices and then sprayed his fields with glyphosphate-based herbicides to take advantage of it. That isn't Monsanto's contention; Bowman admits to having done it. Maybe he's right and there's a patent exhaustion claim that makes doing that lawful, but it's hard to argue that Monsanto shouldn't have their day in court to verify it.

No, it's in fact very easy to argue that. And in case you failed to notice that was exactly my point. Farmers work their ground, they've been doing so for many thousands of years.

Intellectual property and farming should be mutually exclusive fields, anybody should be able to grow anything to the best of their ability without the fear of being sued. I know that you disagree with this, that you believe that it is A-ok for big company 'x' to sue farmer 'y' for violation of their intellectual property (assuming for the moment that such a thing exists) but I'd much prefer for things not to be like that. It's an opinion, you can disagree with it but you can't disallow me to have that opinion or 'force me to concede a point' in which I do not believe.

The rule of law should not extend to your ability to grow food from seeds, to royalties paid on such seeds or to any derivative thereof.

Incidentally, the rule of law's grip on the seed trade is centuries (millenia?) old. Agriculture is a very big part of the reason we have law to begin with.

Yes, so he would have planted some other seeds instead. Problem solved. See, farmers will pick that which gives them the best yield, not that which holds the nicest bit of IP, their decision processes don't work in terms of royalties or intellectual property. Farmers buy seeds, farmers plant seeds, farmers tend their crops, harvest and then - hopefully, but definitely not always - make a profit.

What seeds they buy is up to the farmer, and if there had been no sign saying 'roundup ready', price 'x' and if the farmer would have not used roundup he'd be just as guilty according to the law since the law revolves around the fact that the seeds were not legally obtained.

This is so patently ridiculous that I find it somewhat disconcerting to see you arguing that that is a desirable situation. If you BUY something, especially something as basic as a seed you should not have to go and research the chain of events that led to those seeds being offered for sale and whether they are unencumbered from a legal point of view.

It's ridiculous.

If he had planted "some other seeds" and then sprayed them with glyphosphates, he'd have ruined his crop. If he had planted Roundup-Ready seeds and not used Roundup, Monsanto probably wouldn't have cared. I've read a bunch of filings for different Roundup cases, and in every one of the ones I've found, it's alleged that the farmers in question not only planted Roundup-Ready seeds, but also used Roundup instead of conventional herbicides.

Yes, I know that. I was just trying to make you see that in the eye of the law that would not matter. The seeds are the problem, not the whole process, it all revolves around the seeds.

> If he had planted "some other seeds" and then sprayed them with glyphosphates, he'd have ruined his crop.

Indeed.

> If he had planted Roundup-Ready seeds and not used Roundup, Monsanto probably wouldn't have cared.

Who knows, but it isn't material whether Monsanto 'cares' or doesn't. After all they're claiming IP rights in the seeds, that's the only thing that matters and they could do so in either case. Of course they would be much less likely to bring suit in that case because it would somewhat reduce their chance of winning wouldn't you say?

> I've read a bunch of filings for different Roundup cases, and in every one of the ones I've found, it's alleged that the farmers in question not only planted Roundup-Ready seeds, but also used Roundup instead of conventional herbicides.

Indeed. And so we are left with a very simple case abstract:

Should a farmer be able to grow any seed that he/she buys on the open market?

I believe the answer to that question is 'yes'.

(i) Unsanctioned planting of Monsanto-lineage seeds

(ii) Use of glyphosphate herbicide on the resulting crop

BOTH elements are present in these cases. Not just one.

You don't see anything weird in that sentence?

What else are people going to do with seeds, other than plant them?

And use whatever herbicide works best with these seeds, it's only best practice after all.

Since when does anybody need permission from some company before they can put a seed in the ground?

What if there is a famine, would you allow that farmer to plant the seeds, or would you happily stand by while justice has its day and these evil seeds are destroyed so that Monsanto's legally granted rights are not infringed on?

Really, the world is turning into a stranger place every day that I live in it.

By all means, use whatever conventional herbicide works best on the resulting crops. Just don't spray them with the patented chemical that would kill any soybean that wasn't covered by Monsanto's patent.

The world hasn't been turned upside-down by novel applications of the law. It's been turned upside-down by massive investments in biotech that have enabled us to create magical crops that thrive despite being sprayed with extremely potent herbicides. Your argument here is an appeal to tradition and it's entirely misplaced.

They are right that usually each individual piece isn't a crime. But someone can perform 15 acts, each of which, in total isolation, would be legal, but end up in a significant illegal act. As that someone performs more and more of those acts, they move from legal behavior, to probably legal behavior, probably illegal behavior, to probably illegal behavior but with minuscule damages, to illegal behavior with serious damages.

I don't see that claim anywhere in the message you replied to. I see a claim that he believes that someone should be able to buy seeds and use whatever herbicides one wants with them without a risk of being sued for IP infringements.

That is not an argument about the moral standing of either farmers or lawyers, but an argument about where he believes one of the restrictions on patents should be drawn.

Wrangling with the legal issues enforces consistency in our approach to the laws that govern our society. This approach is absolutely necessary in order to ensure that the base patent laws that are intended to promote innovation are extended logically in their interpretation.

Monsanto has spent incredible amounts of money and effort in pushing genetic engineering forward in order to create more food for the planet. Shutting them out from being able to profit from that effort would seem to be the only notion that is "ridiculous".

The exercise of coming up with a consistent legal approach in dealing with their claims is perfectly legitimate and noble.

I think you are misinterpreting Monsanto's mission to a frightening degree. Google posilac for instance.

Monsanto is good at PR, I knew that but that they're able to position themselves as the saviors of the planet is beyond what my cynical imagination could come up with.

You get to support that farmers are violating Monsanto's rights by replanting 2G seeds, or you get to claim that Monsanto has moved the world forward by making better plants for everyone--these claims are mutually exclusive if you are optimizing for "The most seeds and plants for everyone."

That isn't to say the current system precludes those people either (Earl Warren for example) because it is still a political process but it is more resistant.

That being said, I think that SCOTUS would be better served in cases of patents and sci/tech in general by using the process they currently use to handle important cases like the water disputes between Kansas and Nebraska being argued presently. SCOTUS appoints a special "master" to work on behalf of them to figure out the core issues and educate them. I could see someone like a Richard Posner being an excellent master for patent and SciTech internet related cases.

Monsanto has systematically worked to destroy access to seeding machines (which take mature crop and harvest the seeds from them) to prevent anyone from using standard farming techniques to build mature seeds. This in effect forces the average soybean farmer to buy ALL his seeds from Monsanto, because they control the supply to seeds.

Additionally, there's a presumption that anyone using non-Monsanto seeds is using a 2G seed that infringes their patent. Farmers are basically bullied away from approaching another source for their seeds.

Lastly, Monsanto is only able to effectively enforce these patents in the US. Soybean farmers throughout the rest of the world regularly use confirmed 2G seeds and their governments don't side with Monsanto. As a result, US farmers are forced to pay the cost of higher seed prices due to the "IP theft" going on in the rest of the world.

"IP theft"? The only IP theft is allowing Monsanto, a private company, to patent seeds.

Wait, you mean the combine? They are not hard to come by at all. You will find one on most grain farms.

> Farmers are basically bullied away from approaching another source for their seeds.

Monsanto already licenses the technology to anyone you might buy seeds from.

> Lastly, Monsanto is only able to effectively enforce these patents in the US.

I believe Canada was the first location for the successful test of the validity of the patent.

hkarthik probably meant "seed cleaning equipment" which is quite different from a combine.

> Monsanto already licenses the technology to anyone you might buy seeds from.

No, that would be false. In fact, they go a step farther and claim that if your neighbor has Monsanto seeds and it drifts into your plots, you need to pay them. Instead of a time honored "you contaminated my land - pay me" we get the reverse complete with bully lawyers.

> I believe Canada was the first location for the successful test of the validity of the patent.

Yep, and it was a horrifically stupid ruling[1].

1) http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...

That had crossed my mind, but he was quite explicit about the machine that does the harvesting of the seeds. It is not very common for farmers to clean their own seeds anyway, even predating these patent issues. Monsanto has been so successful with this because it has no real impact on most farms.

> No, that would be false.

I mean you are not going to be buying GMO seed from your neighbour, but any business in the business of producing seeds will have the technology available. Monsanto is not the only vendor of RR products.

    when all purchasable soybean seeds on the market
    end up being composed of seeds that originated
    from Monsanto's genetically modified stock

Lets say I bought a new mousetrap. After purchase, I go around and add/remove aspect of it. I change the color scheme. I change the cheese to a more smelly version. Has it now suddenly become a new mousetrap and is thus no longer the same physical object as first sold?

If the seed still embodies the details described in the patent, how is it not still the same object? I could understand Monsanto counterargument if no aspect of 1G seed existed in the 2G seed but thats of course not true. More likely, all patented aspect of 1G seed is all still in 2G seed. If that was not true, than even if Monsanto won, they would loose as they then would have no claim on 2G. Thus the only changes of 1G -> 2G must be trivial and not covered by the patent.

In this classic scene, Trigger claims that he's had his road sweeper's broom for 20 years. But then he adds that the broom has had 17 new heads and 14 new handles.

"How can it be the same bloody broom then?" asks Sid the café owner. Trigger produces a picture of him and his broom and asks: "what more proof do you need?"

From 'Heroes and Villains' (1996)

http://uktv.co.uk/gold/stepbystep/aid/579394

en.wikipedia.org/wiki/Ship_of_Theseus

Note: GX+1 seeds need to be able to make millions of copy's of there initial DNA sequence to be come seeds so it's a really arbitrary cutoff in that they can multiply millions but not billions of times. Which would happen if the GX plants where left alone.

History has proven that the courts aren't exactly all too good at delivering fair, unbiased and swift justice when it comes to a Monsanto vs (insert rural farmer here) cases. I hope Bowman wins this case, it'll hopefully set a precedent and example that Monsanto can't walk over family farmers trying to make an honest living. Most of the prior cases Monsanto has brought against farmers usually end up being settled because the defendant runs out of money to keep fighting and ends up losing everything they own.

It's companies like Monsanto that are ruining family farming. If this continues farming as we know it will cease to exist in the traditional sense as we all know it and eventually the only farms that will exist will be corporately owned ones.

Isn't this the same concept as saying you replace a part in your vehicle/phone/pc/whatever with something that is patented, and now the patent covers the entire vehicle/phone/pc/whatever?

Alternatively you patent a commodity (seed/raw material/synthetic material/etc), now everything that is made from that commodity is covered by the original patent? what happens when you use the commodity to make a tool, with which you build other end products? where does this end?

Maybe I am misunderstanding, or have the wrong end of the stick?

(Which just points back to discussing the merits of granting such patents)

"That's ridiculous!" a bunch of you are saying right now. You're right, because that's how the IP protocol works. Things get copied around, it's built into the basic underlying technology process you are utilizing. Yet, how is a plant producing pollen and sharing it's genes around with nearby neighbors not part of the underlying biological process the engineered genes are using?

I don't see how Monsanto would ruin family farming -- family farming existed centuries before Monsanto was founded. You can still buy non-GMO seeds, the only reason people buy that stuff is to improve yield.

Traditionally farmers would save a portion of their crop to plant for the next year. There is even a special machine that prepares seed for planting called a "seed cleaner". Enter patented GMO seed which gets planted in a field next to regular seed and is cross pollinated by nature. Now the farmer who didn't plant GMO seed has a crop that contains the GMO patented gene. So if he cleans that seed he is at risk of being sued the next year for patent infringement by monsanto. In fact they have been systematically been suing seed cleaners to to get their client lists and then sue the farmers. Since it is nearly impossible to ensure your crop hasn't been cross pollinated with a GMO crop Monsanto has essentially shut down the traditional way farmers have worked. additionally they are reportedly very aggressive in pursuing farmers and frequently trespass on their fields to take seed samples. That is why they say that they have "ruined" family farming.

Food Inc. is one good documentary where this is discussed in detail among other food related issues.

http://www.slowfoodsanfrancisco.com/blog/policy/monsanto-des...

well... the fact is that a seed is not trivial also, and was not trivially changed in thousands of years by a lot of farmers and other people. Then you change one or a few parts in this seed and you can claim that all the "seed software" is yours. Even if you changed a single line.

Maybe we need a GPL for living creatures?

You are not gaining a profit on the Monsanto work, Those seeds are not provided by Monsanto and as you can not avoid to use genetically contaminated, and identical to other seeds otherwise, you should not face a trial for this.

That's what happened in this case:

  That same year, Bowman applied glyphosate-based herbicide 
  to the fields in which he had planted the commodity seeds
  to control weeds and to determine whether the plants would
  exhibit glyphosate resistance.  He confirmed that many of
  the plants were, indeed, resistant.  In each subsequent
  year, from 2000 through 2007, Bowman treated his second-
  crop with glyphosate-based herbicide.  Unlike his first-
  crop, Bowman saved the seed harvested from his second-crop
  for replanting additional secondcrops in later years.  
  He also supplemented his secondcrop planting supply with
  periodic additional purchases of commodity seed from the
  grain elevator.  Bowman did not attempt to hide his 
  activities, and he candidly explained his practices with
  respect to his second-crop soybeans in various
  correspondence with Monsanto’s representatives.

("glyphosate" is the active ingredient in roundup, "glyphosate resistance" is the trait developed and patented by Monsanto.)

If they control or even mess up the computer industry, it's not the same as agriculture.

GMO seeds enable greater crop yields which would actually be better for humankind, so making money on GMO seeds is important. The great potato famine in Ireland wiped out a million people. We use more advanced fungicides now, but the chemicals used have a greater chance of causing liver damage than GMO plants. Obviously it would have to be a fair and balanced decision, but we can't throw out common sense because it affects a "critical industry".

Monsanto is an easy company to hate, but we can't make the wrong decision here or else it will affect future generations of companies who want to improve crop yields via GMO products.

Whats the cost-benefit of having patents on GMO seeds? Whats the increased cost to society vs disclosure of information? Patents are an barging, where the state gives a state protected monopoly in return for disclosure of information. Lets make a cost-benefit analyze and see where it points (hint, not even with imaginary numbers would patents on GMO seeds ever come up on top).

> no future agriculture company will ever spend money on GMO research

What a lie. Sorry, but I am going to call it what it is. A lie or a serious form of disillusioning. If you can create a better method to farm: vegetable oils, soy, rapeseed, jatropha, mahua, mustard, flax, sunflower, palm oil, hemp, field pennycress, Pongamia pinnata, or algae, you are going to earn serious money. The military would very much like to be able to producer cheaper biofuel, as would a never ending list of companies. Corn is an other, where a better seed would easy earn you billions if sold to the highest bidder.

Sure, you can't go around suing farmers who never heard of your company, but that is a good thing.

http://en.wikipedia.org/wiki/Great_Famine_%28Ireland%29#Food...

Famines these days tend to be more economic than agricultural.

Why? Because its critical for national security. Is food security any different?

Do you think they are researching and investing in finding seeds/plants that don't have a tie-in to their chemicals?

EDIT: Their problem is that the patent on Round Up expired so we have other companies that can make and sell the herbicide generically now. Their original business model made sense and was reason enough for them to innovate and create GMO seeds.

Question: Can we now say that modifying genes to make organisms resistant to certain chemicals is no longer non-intuitive?

How does have a large majority of our food coming from the same gene pool help secure our future?

If anything it puts us all at greater risk. While in the short term GMO seeds might help, in the long term it appears we are increasing unnecessary risks. Typical current day view: shortsightedness and sacrificing the future for gaining today.

Way to judge inventions based on your personal scales. So the requisite for patents is having big labs?

Just because something looks simple it doesn't mean it doesn't has value, or didn't had talent and R&D behind it. Do you realize there can be research even behind something as simple as the shape of a device, because there's someone thinking how millions of people will interact with it everyday?

That's the perverse thing about patents. Who has the right to judge if an invention is trivial or not.

Farmers are free to enter into this relationship since the seeds do conver some advantages in reduced use of pesticides etc. but there is a significant problem with cross-contamination from neighboring crops and through the supply chain so Monsanto ends up suing farmers who never had any intention to use their products in order to get everyone to bow to their will and maintain the agri-business model.

UPDATE: There was supposed to be some form of "terminator" gene included in the GM products to explicitly prevent generation two seeds from being replanted. I guess since we are talking about law-suits that did not really work as expected.

http://en.wikipedia.org/wiki/Genetic_use_restriction_technol...

Also the area in which Monsanto operates is one where most people IMO would want the old ideals of scientific discovery and invention returned to the common to grow the whole wealth of mankind - not artificially inject a trap such that one company extracts profits at the expense of wider growth

The problem is not that there are mega corporations making GMO seeds or mega corporations creating new drugs. The problem is the extensive patent rights on the result.

http://nature.berkeley.edu/~miguel-alt/modern_agriculture.ht...

Additionally, I don't have my contract with me at the moment, but I seem to recall the requirement of planting a percentage of non-GM crops as part of the agreement of using said seed. Planting RR crops year after year on the same ground doesn't work very well.

[1] http://en.wikipedia.org/wiki/Glyphosate

The anti-GMO documentaries I've seen have covered the "their seed blew into my field" and "I bought seed and signed a contract to only sew it one season then breached it" type lawsuits, but not this --

He's buying seed, from a third party, without signing any agreement with Monsanto. That seed isn't even necessarily Monsanto's product, but from plants that descended from those seeds. It may contain the patented genes, but those genes only got there from the original authorized sale of seed to whoever owned the elevator.

The exhaustion doctrine says that a patent holder's rights end at the point of an authorized sale. Once Apple sells you an iPad, you can do whatever you want with that iPad, including selling it to someone else, and aren't infringing the underlying patents the product implements.

So, why can Monsanto claim damages here?

Is this the fundamental question they will be arguing at the supreme court?

Devil's advocate: even if you buy your DVD at Amazon you still cannot show it for $2 each to 50 people at your home or make copies for profit.

Maybe the sack containing the seed had some sort of disclaimer "by opening and using this you agree to..."

Is that actually the case? Last time I sawy anything about this the publishers were trying to have it both ways, saying that on the one hand what you owned wasn't the disk it was a license to the content so you couldn't just do whatever you wanted with it, but if you tried to use that to say "well then I can rip the DVD and copy it somewhere else" you'd get an argument about only owning that specific format.

I didn't realize that having a bad business model gave you a valid case.

As a libertarian I think we should seek a smaller role for government in people's lives. But I also think if something is in fact a function of government, we would be better off to admit it and formally finance it as such, than bring it in the back door by dishonest means.

The fact that giant corporations are involved with progress in our society is not proof that progress would cease without the involvement of giant corporations.

Actually, it somewhat ironic to use the X Prize as an example here. Burt Rutan's Scaled Composites won the X Prize, with Spaceship One. Spaceship One was a joint venture between Rutan and Microsoft's Paul Allen. The investment vehicle was Mojave Aerospace Ventures (http://en.wikipedia.org/wiki/Mojave_Aerospace_Ventures) which is basically an IP holding company that controls commercialization of the patented Spaceship One technology through licensing agreements.

Scaled Composites itself is actually a great example of the kind of separation of concerns that patents enable. They don't make end-user products really. They're a small engineering outfit that does mostly R&D. They make money by consulting, contracting to build specialized components, and licensing their substantial patent portfolio. The company doesn't have a ton of big factories, etc. The value of the company that Rutan spent 30 years building is engineers that could walk away at any moment and a pile of IP.

Furthermore, the probability of not winning exists in all R&D: A lot of it fails, or they're beaten to the punch by competitors. Whether the potential payoff comes from revenue from patent encumbered products, or from a government prize fund is irrelevant.

Investors can further correct for the risks of the failure of any one company involved in a prize attempt like that by spreading their investments over multiple participants. It's not like these kind of investment scenarios are unfamiliar to the financial markets.

> Furthermore, the probability of not winning exists in all R&D: A lot of it fails, or they're beaten to the punch by competitors. Whether the potential payoff comes from revenue from patent encumbered products, or from a government prize fund is irrelevant.

You have to read your two points in conjunction. Sure, the prizes could be raised until they were big enough to recoup the R&D costs weighted for the probability of failure. This is basically what happens anyway--a company will engage in half a dozen R&D projects with the assumption that only one or two will be successful and the revenues from that will recoup the R&D investment on the other ones.

But to actually get anything done in fields like aerospace, medicine, etc, you'd be talking about billion-dollar range prizes. You'd also be talking about a very different allocation of the R&D burden. Right now, the people that use say a drug for diabetes are the ones that pay for the R&D, by virtue of their paying high prices for the patented drugs. But with government-funded projects, everyone would bear the costs of these innovations equally. Also, it puts government in the position of deciding what innovations are valuable by its choice of what to offer prizes for.

People are rightfully skeptical of the idea of the government handing out billions in taxpayer dollars for "innovation" that some bureaucrat thinks is necessary. I don't think it's a clear win over the patent regime.

Still, what I suggest isn't unfathomable. The company doesn't even have to be altruistic...even if their sole goal is profit, I think there should be some affordances to protect them.

We allow people to get limited liability for joint enterprises. This is a privilege. Either we put real people in jail, or we start revoking charters.

Protecting unaccountable institutions because their greed might result in good things is a complete abdication of governance and simple common sense.

Monsanto has every right to get a patent on the 1G seeds. They have every right to sell those seeds -- they put money and effort into designing a (theoretically) improved product and should be rewarded for their investment.

Once they sell the 1G seeds, however, that's it. If the resulting plants produce equal-quality 2G seeds, then so be it. Once the farmer has purchased the 1G seeds (presumably from Monsanto), that's the end of the road for Monsanto. They've produced a product, sold it, and made their money.

What's happening here is that Monsanto is using the courts to compensate for a bad business model and a flaw in their design. If they want to continue to get farmers to purchase seeds from them year after year, then what they should have done is engineered the seeds to "expire" after a generation: The results plants should produce 2G seeds that are in some way inferior to the 1G seeds.

That way, farmers have a natural incentive to keep purchasing 1G seeds year after year. No lawsuits or restrictive license agreements needed. If farmers want the best, they buy from Monsanto. If they are ok with the inferior 2G seeds, then they can harvest their own and keep planting.

If it's not possible for Monsanto to engineer the seeds as such, well, too bad. The buck stops there. They need to charge more for the 1G seeds then. But farmers won't pay if the cost is too high? Well, again, too bad. Their job is to convince farmers that buying 1G seeds at 2-3x the price is worth it because of the improved product. If not, well, back to the drawing board.

This comes down to Monsanto trying to use a license agreement and the courts to compensate for a flaw in their product design, and that isn't right.

It basically prevents G2 seeds altogether, but they've pledged not to use it because of public outcry, instead relying on these contracts.

If you seriously think through the consequences of usage of this kind of tech, it's pretty dire. Due to natural cross-pollination, we could be setting ourselves up for a world where everyone must buy all of their seeds from Monsanto and their ilk, who would have a monopoly on the world's food supply. That's bad news indeed.

Monsanto wants to have its cake and eat it too. It wants to benefit from G1 seeds through GX seeds while contaminating the supply of available non-Monsanto seeds.

In cases of cross-pollination, that's Monsanto's fault. They should be required to clean up their own mess. I don't see how they'd have grounds to control seeds that were cross-pollinated through their negligence.

Monsanto is worried about more than just some outcry if they put in termination genes. They could be opening themselves up to a great deal of pain.

Unfortunately, so do monocultures.

Further, if Monsanto wants to reap the benefit of their product's self-reproduction; they should be required to pay cleanup costs (by the EPA? Department of Agriculture?) to remove "contaminated" soybeans from the rest of the environment.

It's not this farmer's fault that Monsanto's product has polluted the stock of available leftover soybeans. Monsanto should be the entity on the hook here, not the farmer.

Killer Seeds

The irony is GM seeds have not been effective in India and the consequences are not as rosy as what Monsanto had promised to deliver. Scathing reports of mass suicides of Indian farmers broke out as recently as three years ago when scores of farmers took their own lives in order to escape the burden of high prices and failure of Monsanto’s GM seeds.

Monsanto offered its GM seeds to the farmers of India with hopes of reaping plentiful crops. Plain and mostly uneducated farmers thought Monsanto had come to provide a “magic” formula that would transform their lives. They had no idea what was coming.

Monsanto’s seeds in India did not produce what the company had promised and farmers hoped. The expensive seeds piled up debts and destroyed farming fields. In many instances, the crops simply failed to materialize. The farmers were not aware that the GM seeds required more water than the traditional seeds. And lack of rain in many parts of India exacerbated the crop failure.

If they wanted their seeds to have an expiration date they should have engineered that in there too. Soybean replicants.

That may be true now. There was a time, not so long ago, that a patent was denied to any idea that had not been reduced to practice, in a working physical embodiment:

http://en.wikipedia.org/wiki/Reduction_to_practice

Quote: "In United States patent law, the reduction to practice is a concept meaning the embodiment of the concept of an invention. The date of this embodiment is critical to the determination of priority between inventors in an interference proceeding."

(I hasten to add that the above rule about priority no longer applies. Because of recent changes, the U.S. is changing to a first-to-file system.)

Quote: "A 'working model' is usually a strong evidence to demonstrate actual reduction to practice. Unlike patent models of the 18th and 19th century, a working model is no longer a requirement of the U.S. patent law."

All this has been swept away by changes in the law, and we have the present patent system in which the patent office rubber-stamps virtually anything, and claimants work things out in court.

http://en.wikipedia.org/wiki/Composition_of_matter

A: GREED.

Another scenario: cross-breeding with other crops due to bees. Your strain could get copied to the field next door: NEW problem.

And for all the evil corporations out there: make as many seeds as you can. Next put them in an airplain and spread them EVERYWHERE you can. Wait 3 yeas for the strain to spread and sew EVERYONE.

In essence you a selling a self-replicating machine not under your control ... And they don't see an issue here ?

A better way to "reward" these companies (if we want genetic mutated strains) let them prove the worth they create and pay it off by the government, since they serve the entire community. (And hope there is no corruption or abuse on the system.)

"... it is ironically Bowman’s own lack of cash that has seen the case end up at the supreme court."

Why does it take someone being bankrupt and having "nothing to loose" to get a case like this brought forward? It seems like a perversion of the concept of the court systems.

The same goes for Internet search - if Google goes broke or looses its backups or charges 1 pound a month subscription what happens?

Do we need a law of innovation-to-infrastructure? Once a company achieves some innovation that is sooooo part of the world that it seems like infrastructure, do we prevent it from monetizing the same in some counter productive manner? Do we produce a oversight committee

I squirm inwardly at half those words - but then again my gas supply works, at a affordable rate.

There's actually a huge natural gas rollout taking place in my community right now: http://www.summitnaturalgas.com/view/92 This is a large investment, which involves laying hundreds of miles of pipe and boring under the Lake of the Ozarks in three different places (in one location parallel to a privately-funded highway bridge). I understand that investors expect to be paid back over decades. Yet, no one appointed Summit to do this work, any more than anyone appointed Google or Monsanto to do what they do. Anyone in the world with an internet connection and a server farm is free to compete with Google. On day one when they turn the tap on their pipeline, Summit will be competing with numerous propane suppliers, the local incumbent electric companies, and even the long-term possibility (however remote) of another group building another natural gas pipeline. If Summit and Google don't need state protection, why would Monsanto?

Tomorrow will change so fast that relying on 75 year old farmers to take on esoteric legal points to enforce social benefit is a little unreliable

I believe GM are a chance to humanity, with the potential to feed more and more people.

But why develop it and spend millions on R&D if everybody can copy your product for free ?

And as far as I know, these seeds allow farmers to use massive doses of roundup, if this guy used some roundup on his crops it's fair to say he perfectly knows these were gm seeds and that he wasn't allowed to use it for free.

If you don't want to pay for it, don't use it and do like farmers always did, with standard seeds.

Since when does people have a right to make a profit, even if their business plan is stupid?

> But why develop it and spend millions on R&D if everybody can copy your product for free ?

Because if you're not a totally evil bastard, you can still make a massive amount of money by creating a brand that ensures people trust you to always give them the best product?

How many people do you know that buy brand name Ibuprofen, for example, despite the fact that Boots, who found the compound and commercialized it, has not held a patent on it for decades? In fact they sold off their own premium brand (Anadin) a while back and now competes with their former brand with cheap generics that often costs a tenth or less of what Anadin charges for the same chemical compound, and still makes money off it despite competition from dozens of manufacturers.

It's possible some types of research would not pay without artificially jacked up prices like this, sure. Boots certainly would have made less from Ibuprofen without a patent initially.

But if these Monsanto seeds are so effective, then this patent acts as a de-facto tax on a whole range of foods, as unlike Ibuprofen, if they are effective enough to affect competition, "everyone" will need them. If they're not, it doesn't really matter if the R&D hadn't happened.

If it already acts like a tax, we might as well bring it under democratic control, and lose the competition distorting downsides of an artificial monopoly, by using already well established avenues for public funding of research to handle any shortfall in R&D funding from curtailing patent rights.

The agriculture industry is one of the largest recipients of government subsidies in the world as it is - shifting even a small percentage of those subsidies into funding R&D to make advances in seeds available to farmers cheaper would probably pay off.

As long as it provides value for the society. If you allow farmers to replant seeds then Monsanto doesn't exist anymore. Do you think it's better for the society? Well Monsanto isn't probably the best example because it's the worst company I can think of, but you get my point. That's the same with vaccines, it costs a lot of money to develop, if you allow everyone to copy it then there's no market and no vaccines. I see gm crops like a software license limited in time, it's not because we agree that you can use my software for a year that you have the right to use it for as long as you want. Don't like this business model ? Then don't use it.

> But if these Monsanto seeds are so effective, then this patent acts as a de-facto tax on a whole range of foods, as unlike Ibuprofen, if they are effective enough to affect competition, "everyone" will need them

So what? If a company build a harvester that improves harvest by 20%, am I entitled to steal it because it distorts the market?

I agree with you these technologies should be public and subsidized by the taxpayers because it benefits everyone. But people don't want to pay for it, and that's their right, so we use private companies that sell it to people willing to pay.

Like I mentioned in another post, their seed division is over 100 years old. I don't think they are going to disappear overnight because a patent they recently acquired, relatively speaking, went away.

Their biggest sell is that they are able improve the yields on the crops year over year. Replanting the seed you grew last year will leave you falling behind the competition, and probably out of business after a few years. Just one bushel per acre difference means tens of thousands of dollars for the average farm. With razor thin margins, you cannot afford to miss that.

Also, Monsanto is a huge business. The thing they seem to be most excited about right now is their precision agriculture division. (i.e. applying electronics and software to grow better crops) Given the nature of this site, I'm sure you can see the potential there alone.

.. and this is the basic assumption of patents: They should provide value for society. If they don't, then they are a bad bargain and should be taken off the table. They are not some perpetual right. They are a grant from society in return for certain things. If the benefits don't exceed the costs or damages accruing from taking away the freedoms they curtail, then we should take these grants off the table.

> If you allow farmers to replant seeds then Monsanto doesn't exist anymore.

Someone else addressed that better than me.

> I see gm crops like a software license limited in time, it's not because we agree that you can use my software for a year that you have the right to use it for as long as you want. Don't like this business model ? Then don't use it.

... or change the law, to take this business model off the table, if the software company abuses the rights to place restrictions that we as a society finds not to be worth the benefits we get from it.

Again: They do not have a right to profit from their chosen business model when this business model is based on exploiting a grant of rights that depends on the restriction of the freedom of the public that society chose to offer with specific goals. They have a right - as long as we continue to offer that trade - to try to profit from it. But we also have a right to take that deal away if we don't benefit sufficiently from it, or if the restraints it adds prove too harsh.

> So what? If a company build a harvester that improves harvest by 20%, am I entitled to steal it because it distorts the market?

You miss the point entirely, which was that if we're already paying for this technology, then for society there is no cost saving in leaving the R&D to Monsanto vs. paying for it from public funds. And the argument

Such a simple phrase, so difficult to implement. In fact, the only true and proven method of valuing something, in History, has been the capitalist market. I think you accidentally supported the parent comment author's point.

Which point of the parent comment am I supporting exactly? We both agreed these technologies shouldn't be developed for profit, I'd love to see some international organization doing the research and giving the results for free. Actually I think it already exists, I can't remember exactly which organization but there are some non-profit groups researching better crops.

A very bad business model indeed.

It seems like Monsanto's business model is no better than our's (software) when one can copy the product easily and distribute it. The only difference is that there are very few seed manufacturers so Monsanto stands alone at trial. Suppose in the future when seed genetic programmers are as common as indie software shops, should these genetic programmers have similar IP protections that software people take for granted?

Copy infringement of seeds is by design. You cannot plant, grow, sell or process your crop without the basic operation of replicating the original.

There are a number of reasons why a farmer would want to buy from a seed company over producing their own. Monsanto's Dekalb seed division is more than 100 years old, which long predates these patent issues.

Because some stakeholders expressed concerns that this technology might lead to dependence for small farmers, Monsanto Company, an agricultural products company and the world's biggest seed supplier, pledged not to commercialize the technology in 1999.[2] Customers who buy patented transgenic seeds from Monsanto must sign a contract not to save or sell the seeds from their harvest,[3] which preempts the need for a "terminator gene".

Let me guess, the "stakeholders" we have in mind here are trial lawyers? Sometimes the technological solution really is better than the "social" solution. It leads me to wonder just how effective this terminator thing really is.

Actually the vast majority of soybeans are processed into useful products like shoyu, livestock feed, plastics, etc. If the viable soybean were a needle in a haystack, no farmer would bother looking for it.

What you might see would be e.g. the spread of the copyrighted genes without the terminator genes rather than some farmer grovelling through a pile of seeds trying to find something viable. Or descendants of copyrighted plants growing where they shouldn't be - because the ones that could, did. It seems to me that even if you have the terminator genes, as a "corporate innovator", you still need IP protection. A reasonable and conservative person should assume things fuck up at scale and especially with viral technologies like, say, life.

On the other hand, if terminator genes work well, they start looking like a bad idea. For a start they're strategically bad for any nation which might ever be at war or subject to terrorism, due to the fragility of centralised seed production and distribution.

Also, the idea that the terminator genes would spread to other plants (e.g. http://discovermagazine.com/2003/aug/featgenes which I never was too worried about) starts to look more like a real thing.

I think we can agree that as harmful non-inherited transmissible genetic variation goes, the terminator gene (if it actually works; do we really know why Monsanto didn't buy Delta & Pine?) is probably the least worrisome. A gene that acts against reproductive fitness is not one that will ever be common in nature. As for other variations, patented or not, I expect most will be out-competed outside carefully controlled environments. Few domestic chickens live long in a predator-rich environment. Roundup tolerance itself is unlikely to enhance fitness in the absence of someone willing to pay Monsanto thousands of dollars every year. Those few human-created variations that can establish themselves in wild populations, if we ever discover such, I'm just going to call evolution. The spectre of the super-weed seems silly to me: the essence of a weed is that, in the absence of human intervention, it crowds out plants that humans like. Roundup is only agriculturally valuable for cultivation of varieties that tolerate Roundup; if weeds gained that tolerance it wouldn't be a net loss for humanity.

So obviously some things aren't quite possible. Your suggestion is nice, but I don't think it's as easy as doing a few years of research.

In the end, there will be just one factory with a big tomato logo on it, from which all the worlds tomatoes will come.

https://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmei...

(Spoiler alert: Monsanto won.)