When people think about plant patents, they're usually thinking of the Monsanto suits. I don't know that there aren't crazy patent trolls out there suing gardeners, but as far as Monsanto is concerned, I don't think gardeners have much to worry about.
If you read the Monsanto suits that have been published, the behavior Monsanto pursues is planting unlicensed Roundup-Ready seeds and then spraying them with glyphosphate-based ("Roundup") herbicides. You can spray Roundup without a patent license. You can probably plant RR crops without a license. But if you do both (commercially, at least), Monsanto sues.
The point of RR seeds is that they resist Roundup, which is a broad-spectrum herbicide that will kill non-RR crops. In the commercial suits, it becomes tricky to argue that you planted RR crops unwittingly when you are later shown to have sprayed them with an herbicide that would have certainly ruined your harvest but for inbred RR resistance.
The patent they have on the whole RR system may be totally invalid; I'm hoping to have the presence of mind not to end up litigating that point. I'm just saying, the likelihood of accidentally become a lawsuit target appears like it might be overblown in some ways.
When people think about plant patents, they're usually thinking of the Monsanto suits.
Most people might, but those posting patent questions to a gardening forum are a special breed. The patent question comes up often for those interested in propagating fruit trees. Groups that exchange varieties of plants and desire to obey the law often have complicated self-policing policies. For example, here are guidelines for a local chapter of the California Rare Fruit Growers association: http://www.crfg-redwood.org/patented-fruits-list-2013.pdf
I'm just saying, the likelihood of accidentally become a lawsuit target appears like it might be overblown in some ways.
Perhaps, but for many the question of risk is distinct from the question of legality. The questioner wasn't asking whether he was likely to be caught, but how to determine ahead of time if one is behaving legally. It's not clear if this is even possible. Does intent matter? One of the major breeders of new fruit varieties in the US asserts that it does not:
"Asexual propagation of patented plants (including any of its parts such as leaves, buds, cuttings, seed, fruit or pollen) is strictly prohibited without the written authorization of the patent holder or the patent holder’s agent. Possession of improperly propagated trees of patented varieties (such as the receipt of trees, budwood or graftwood from unauthorized sources) constitutes infringement, even if an illegal propagation was inadvertent."
Interesting, I hadn't thought about the fact that there's only an advantage to RR crops if you're actually spraying Roundup and that spraying Roundup on a crop would somewhat imply that you're aware that you're planting a RR crop.
You seem to be aware of plant patents; are those frequent and commonly litigated in the US? I have only heard about the Monsanto stuff and was curious about how patents affect that industry.
I am not at all aware of plant patents. The only weird thing about me is that I enjoy reading court filings. So I'm definitely not qualified to answer the question. Like I said in my comment above: there could be crazy non-Monsanto people that want to sue gardeners.
I agree that people usually think of Monsanto suits in conjunction with plant patents, but the point that the article raises is valid. How can one tell? If you can tell, don't we all owe money to the heirs of whoever invented corn, and whoever invented wheat? After all, copying is theft...
Like I said, if you want to argue that there is no possible validity to a plant patent, that's something I'm not prepared to litigate. I'm just saying that accidentally planting a RR plant in your garden or even your commercial farm probably won't get you in legal trouble, because you aren't going to spray them with glyphosphate.
How on earth did you get the idea that I'm arguing against the validity of a legitimate, duely legislated and properly instituted legal entity like a plant patent? In point of fact, I argued the exact opposite. I feel quite offended that you attribute the exact opposite of what I wrote to me. I wrote that copying is theft, and I implied that we all owe some money to the heirs of the inventors of agriculture (there were probably at least 5 such inventors) because of the continued use of said inventor's property.
What's your beef with that? Are you a pirate, or one of these anti-Intellectual Property heretics/crazies?
Corn and wheat were domesticated from their wild ancestors thousands of years ago (agriculture dates back about 10000 years), so nobody could get a patent on corn and wheat in general: there's prior art that predates the existence of patents by thousands of years. Copying something that's in the public domain is certainly not theft.
Now, if you're talking about specific varieties of recently genetically modified corn or wheat, there might be patents that apply to those.
Also, patents eventually expire, so we don't owe royalties to the heirs of patent holders forever.
Yes, but if I recall correctly, farmers have been sued because their non-patented plants had been pollenated by neighboring fields of patented plants and so theirs now carried the traits...
That is a popular concern but I haven't read a case based on it. All of the cases I've seen include the allegation that the farmer sprayed their crop with glyphosphate. If you have a link to a case where that was not alleged, I'd love to read it.
Good point. I haven't been following the situation as closely as you have, but I'd venture to say that there have already or soon will be cases where it was truly accidental. The discussion on this article[1] point to a number of cases fairly close to the line.
IANAL, but making copies of the genes in question via growing seeds should be fine because the gene is protected by a patent not copyright. If you're growing seeds with the genes in them I don't see that that actually IS a violation of the patent because a necessary part beyond the expression of the CP4 EPSPS gene in the plant is the process of spraying them. For this specific case if you don't spray I don't think the patent is infringed upon.
The critical think people forget is if you DON'T have the roundup up ready gene seeds, spraying your crop with glyphosphate will kill it so taking that action means you know you have seeds with the genes and are using them.
I'm not a patent lawyer, so maybe I'm wrong and someone can correct me, but all this "how can you patent a seed" whining is bullshit.
The Monsanto patents are for the method of using a particular herbicide in combination with the modified plant seeds. If you innocently get some Monsanto genes into your organic soybean seeds, then you would almost certainly not be infringing the patent any more than I could be infringing DVD patents by using a stack of DVDs to prop up a wobbly table.
Has Monsanto ever sued anyone who was not trying to use the combination of the GMO crops and the herbicide they are tolerant to? I have never heard of such a situation.
I've yet to meet anyone who claims to think it's bad for Monsanto to have a legal monopoly (patent) on this process who doesn't also think that no one should be using it, because it's either screwing with nature to use gene splicing to feed the world, or maybe just because not having our crops ruined by pests makes us soft and unworthy or some crap.
Read Mark Lynas's post explaining "I am also sorry that I helped to start the anti-GM movement back in the mid 1990s, and that I thereby assisted in demonising an important technological option which can be used to benefit the environment."
@tptacek's opinion is much better without resorting to phrases such as "whining is bullshit".
> Has Monsanto ever sued anyone...
As a car driver in a crowded city I bend the rules all the time. Just this week alone there were several rules I broke that could have lead to my license being suspended, but because the city is so crowded, the probability of being caught for breaking rules (such as going around a tram pedestrian refuge, or forcing the yellow light) is close to zero, unless you end up in an accident.
There is a difference however in what is legal to do and what you can get away with. Our current legislation systems tends to make criminals out of all of us. The example I just gave is a bad one too, because I know exactly what rules I'm breaking and I know exactly the outcome if I get caught, whereas with infringing patents you never know exactly what patents you infringe, or the outcome of that.
There's also the issue of selective enforcement. The law should be the same for everybody, otherwise if everybody is a criminal by default, the law gets used to suppress people that are undesirable.
It doesn't really matter if Monsanto never sued anyone for using their patented crops without the usage of the Roundup herbicide. The bigger issue is that if you receive some seeds from a friend, planting them in your garden will leave you on the wrong side of the law and you might not even know it.
"The Monsanto patents are for the method of using a particular herbicide in combination with the modified plant seeds." - I don't think that's true. I looked at some of the Monsanto patents [1] and they are for specific herbicide-resistance gene sequences, just the sequences alone. Do you know of a patent on using the herbicide with the seeds, or is this an urban legend?
I agree that this is insane, but I'm not sure what the solution is.
With most patents, the company that developed the technology to be patented has a unique advantage even without the patent. They have a better technical understanding of the technology than the competitors, and they can incorporate it into their products faster.
With crop patents, the patent seems far more necessary as an incentive to innovate. If Monsanto can't patent their new seed, then anyone else who wants to can also sell the seed, and Monsanto will never recoup the R&D costs. Under this scenario, I don't see why anyone would develop new plants.
Assuming we want to encourage selective breeding/genetic engineering of new plant species, what incentives can we devise that don't have the problems posed by patents?
> Under this scenario, I don't see why anyone would develop new plants.
Prior to privatization, many universities in ag states developed seed for the public domain and farmers passed seed down from generation of farmer to the next, selecting and improving for conditions and yield along the way. Many of these are now considered heirlooms and can be purchased through Seed Savers Exchange or found in seed banks. Some have well-documented lineage, most are a mystery.
There are plenty of reasons beyond money for developing new plants. I'm a pretty intense gardener. I select and create hybrids based on taste. I'm not particularly concerned about travel time from my back yard to my dinner plate or resistance to pests that don't exist in my backyard.
>> "I agree that this is insane, but I'm not sure what the solution is."
I think the core problem is that plant patents mandate that you not reproduce something that naturally reproduces. It just isn't a sensible thing to patent.
I'm generally pretty free-market libertarian, but given the nature of this issue, I think the solution is to do bio-engineering in a way that inherently becomes public domain: by collectively funding crop research with taxes.
Public funding got us the internet. Why not better crops?
> If Monsanto can't patent their new seed, then anyone else who wants to can also sell the seed, and Monsanto will never recoup the R&D costs. Under this scenario, I don't see why anyone would develop new plants.
Could the same apply to GNU or Linux or any other free software project or is it far different thing?
To develop free software, all you need is a PC, Internet and free time.
To develop free GM plants, you need workers, material (host microorganisms, plant fertilizer), green houses, lab time, machines (PCR, sterile workbenches, ideally a sequencer, PCs, maybe a fun electroporator, etc.), space for growth etc. Also, the laws are strict - you can't just create GM-organisms in your backyard, depending on the country you're in you have to be in a certified lab with correct procedures for waste disposal etc.
The upfront costs involved in developing GM are much, much higher. But it's definitely not impossible - there's for example an open source PCR machine for self-builders, I can see more machines like that coming up...
Patents protect incentives to innovate in capital-intensive industries. Software is by and large not such an industry, and is thus a bad point of comparison.
An estimate of the cost of developing a Linux distribution (Redhat 7.1) pegged the cost at about $1 billion (http://www.dwheeler.com/sloc/redhat71-v1/redhat71sloc.html) using software cost models. Monsanto spends that much in just one year on R&D.
Also, note that as a practical matter, most Linux development these days is done by commercial entities that leverage different IP monopolies. RedHat may make the software freely available, but they monetize it by leveraging their trademark in connection with services. IBM puts Linux on patented hardware. Various companies sell commercial copyright licenses for GPL-ed products.
> I don't see why anyone would develop new plants.
A large portion of the most powerful companies are depended on fuel. With constantly climbing oil prices, renewable sources are very much sought after. The military would likely be willing to send top dollars for research into more effective crops and plants. Almost all plants used in farming is also used for biofuel (corn, soy and sugarcane to just mention a few). Animal fat is also used, so basically anything a farm produce could improve the biofuel industry. This is an industry with a loot of money to send researchers regardless of any patents involved.
Monsanto already has a great incentive to make things "roundup ready" - they can sell more roundup as a result. They've done something of debatable patentability that drastically increases the value of their existing assets. If you want to milk it for more, raise the price of roundup, which as a fancy chemical cocktail that isn't self reproducing, is much more viable for patent and trade secret protections.
Sucks for them, innovation doesn't always come at the right time for a big payday. But their payday can still be fantastic without (to my mind at least) ignoring what kind of activities patents are supposed to protect.
RR crops still boost demand for roundup and clones, competing on brand is a valid and proven strategy, and you can still sell RR(tm) branded seeds that you guarantee are roundup ready at perhaps a lower markup. And you can target your next herbicide immune crop at a patent protected herbicide.
> Under this scenario, I don't see why anyone would develop new plants.
I wonder how anyone does anything at all without receiving a fucking de jure monopoly first. Opening a store? Not without exclusive license from the city first!
Long answer: The question is sparked by a recent court case where a farmer - named Bowman - purposefully used unlicensed technology on a commercial scale. If you are doing it by accident, or aren't doing it on a commercial scale, you're perfectly safe. (Some reporting in the popular press makes it sound like Bowman was unaware of his infringement or that it was an accident - a lot of people are freaking out at the idea of Monsanto suing a farmer because some patented seeds happened to be found on his property. If you read the court case, it becomes clear that nothing of the kind happened, and that if it had the case would have been thrown out.)
Really, it's just like every other bit of patented tech. If you're operating a factory pumping out unlicensed Rolex watches, you've got some potential legal liability. If you bought a fake watch in Bangkok, you don't. While I personally have some very serious qualms about the patents on GM crops, the current legal situation is, honestly, pretty sane. Hobbyists are perfectly safe, as are farmers acting in good faith (ie, they plant seeds believing them to be unpatented, or their seeds are contaminated by patented seeds blown across their property line). Activists like to construct scary hypotheticals, but the truth is rather more prosaic.
I think your first paragraph would likely be relegated to spin. While your oversimplification of the problem makes it seem acutely cut and dry the short response is: it's not that simple.
Like all other constraints of life in general, I think going lax on things like a separation of an ill corporation and the direct corollary effect it poses to something nature has originally derived is treading in unknown territory. The fact that this simple question would have been laughable at best 15 years ago showcases the downward spiral into everything being a legal matter in the not so distant future. You may think this is counterproductive activism but skim the history books. Look around you and reflect on the choices that others have made to put your in your first world situation. That can quickly change if there aren't people who keep those ideals in check and balance out the corporate tendencies that often times spins out of control when left to its own device. That is a path where morals take a back seat to suits and dollars more often than not.
"If you bought a fake watch in Bangkok, you don't."
I'm in your team wrt the practical implications of plant patents being overblown, but this example is not correct. Your watch will be confiscated by customs if they find it, and if you do it several times or are carrying a number of them sufficiently large to make it plausible that you're going to resell them (e.g., a number like '5'), you might be looking at administrative penalties and/or criminal prosecution.
> doing it on a commercial scale, you're perfectly safe.
Sigh. I wish people would stop repeating this. It's not true. If you infringe a patent "willfully" (i.e., you know about it, and have reason to believe it applies to you) you can be subject to triple damages. But you aren't safe just because you didn't know about the patent.
And doing something "non-commercially" means little. We all know that estimates of commercial harm can be manipulated-- looking at the damages that are routinely awarded in copyright infringement cases should be enough to convince you of that.
A number of commercially farmed crops are grown using genetically modified seeds. The farmers license the seeds from the company that holds the patents to the various gene modifications (principally Monsanto.) These licenses tend to obligate the farmer to not use the seeds produced by their crops, but rather to buy a whole new bag of seeds each year.
I doubt they'd go after a private gardener, but they could.
>"The first time growers purchase Monsanto seed, they sign a stewardship agreement and contract agreeing not to save and replant seeds produced from the crops they grow from Monsanto seed."
The question is how far the licensing terms reach. The software companies support Monsanto's seed claims because they don't want people pirating software.
I don't think there's been any lawsuits over small-scale non-commercial infringement, but there have definitely been lawsuits against farmers regarding the propagation of patented crops.
Note that plants aren't special in this regard. If you buy a computer or a car or a lamp or soda that contains unlicensed patented technology, then you're in violation of the patent and are theoretically liable for damages. (Note: not a lawyer, I could be wrong, etc.) This rarely comes up, because it's rarely worth going after individuals, but patent law is pretty broad. When you buy something that is legally licensed, you're covered because the manufacturer obtained a license that covered all users of the product, not just themselves.
A computer or a car or a lamp or soda is different from a plant because they do not propagate and create new versions of themselves. Well, maybe the soda but I am rather sure neither the car of computer can do it. Well, a 3rd printed computer could but lets just say that self-propagating patented products are legally messy things. As a consumer or business owner, there is not much one can do beyond keeping ones eye close and hope no one will sue. If they do sue, hope that the judge is a fair minded person that will consider intent and what is human possible regarding patent knowledge.
>A computer or a car or a lamp or soda is different from a plant because they do not propagate
Which is why Monsanto and other companies tried to introduce "terminator seeds": plants who are sterile, so they a) guarantee more profits and b) the IP becomes easier to protect. The technology hasn't been introduced because protests were too large.
There is nothing stopping Monsanto in selling those in the US or markets outside of India.
However, in lands commonly plagued by famine, I could see the argument that terminator seeds would impose a serious security risk to the population. If for some reason the harvest fail, then the farmers is out of both money and seeds to survive for the next year. There would be nothing to fall back on. Terminator seeds would become de-facto time-bombs that are triggered during bad years, and I would understand a government depended on farming to outlaw such seed.
Correction: Below commenter is right that there might be legal issues in using the seeds even outside countries that has explicitly outlawed it. My fault for just reading the sources and not the whole Wikipedia section.
>Initially developed as a concept by the United States Department of Agriculture and multinational seed companies, Terminator seeds have not been commercialized anywhere in the world due to opposition from farmers, indigenous peoples, NGOs, and some governments. In 2000, the United Nations Convention on Biological Diversity recommended a de facto moratorium on field-testing and commercial sale of terminator seeds; the moratorium was re-affirmed in 2006. India and Brazil have passed national laws to prohibit the technology. [1]
The difference, of course, is that your neighbor's patented computer/car/lamp/soda won't spray pollen out that hits your computer/car/lamp/soda, causing it to produce little baby patent-violating computers/cars/lamps/sodas that you can be sued for. Yet exactly that can happen with crops.
According to that page, it only applies to sales that were originally authorized. The way I read it, it means that is Ford licenses a patent for its buyers, the patent holder can't then go after buyers of used Fords, even though Ford may not have explicitly licensed used buyers. It does not, however, protect any Ford buyers, new or used, if Ford failed to license the patent at all.
Have the person providing the plant indemnify you against future litigation.
Someone knows whether the material is patented or not, but they are up the sales chain from you. If they agree to indemnify you against patent litigation, then they know it's not patented. If they won't, then they either didn't do their job in getting similar assurances from their supplier, or they are hiding something.
In general, you work backwards through the stream of commerce indemnification clauses.
It's ridiculous overhead for gifts between friends, of course. That's why, for other areas of the law, like theft, we realized hundreds of years ago that you should give people some automatic protections if they were good faith purchasers. (Not 100%, jurisdictions vary, civil and criminal are different.)
Not sure why we don't borrow similar provisions for patent law, but I guess Bowman v. Monsanto could do that (if it's not simply remanded on a technicality).
Not sure where you live, but legally in the EU it is even worse, though thankfully orders of magnitude smaller scale than the US at this time.
The EU directive "on the legal protection of biotechnological inventions" (Directive 98/44/EC), implemented by all EU member states and even some non-EU states as of 15 January 2007, states "biological material which is isolated from its natural environment ... may be the subject of an invention even if it previously occurred in nature."!
This goes even beyond an international agreement on IP rights (TRIPS). [1]
The main mitigating factor is that EU governments are not particularly IP conscious and are terrified of the public backlash if they attempt to enforce any bio patents - most Europeans have no idea DNA is patentable! In addition, most of the infringers are actually related to the state due to very large welfare systems or academia. Private companies do not have a strong or irreversible grip in these areas, yet.
When people think about plant patents, they're usually thinking of the Monsanto suits. I don't know that there aren't crazy patent trolls out there suing gardeners, but as far as Monsanto is concerned, I don't think gardeners have much to worry about.
If you read the Monsanto suits that have been published, the behavior Monsanto pursues is planting unlicensed Roundup-Ready seeds and then spraying them with glyphosphate-based ("Roundup") herbicides. You can spray Roundup without a patent license. You can probably plant RR crops without a license. But if you do both (commercially, at least), Monsanto sues.
The point of RR seeds is that they resist Roundup, which is a broad-spectrum herbicide that will kill non-RR crops. In the commercial suits, it becomes tricky to argue that you planted RR crops unwittingly when you are later shown to have sprayed them with an herbicide that would have certainly ruined your harvest but for inbred RR resistance.
The patent they have on the whole RR system may be totally invalid; I'm hoping to have the presence of mind not to end up litigating that point. I'm just saying, the likelihood of accidentally become a lawsuit target appears like it might be overblown in some ways.