Yahoo/AP: High-stakes fight over soybeans at high court

[PeterMP]

Begging your pardon, but yes they do. They force farmers to sell their seed to granaries which then mix the Monsanto seed to be resold as commodity seed....as such they allow EVERY buyer of that commodity seed to "reproduce their patented technology", they just didn't figure that someone would get smart....that's their fault.

If I go to a beef auction and purchase a heifer and find out later that she's a Wagyu beef, can I be forced to not breed her as Wagyu, that's what you're claiming Monsanto can do.

Then why did he lose the case (I should have said w/o an agreement with them)?

Wagyu beef isn't covered by a patent so the comparision is useless.

Simple question, is he knowingly and intentionally reproducing patented technology w/o permission?

If that isn't a patent infringement, why not?

[AsburySkinsFan]

Then why did he lose the case (I should have said w/o an agreement with them)?

Because Monsanto has a lot of very good lawyers.

Wagyu beef isn't covered by a patent so the comparision is useless.

Neither are the commodity beans covered by Monsanto's patent.

Simple question, is he knowingly and intentionally reproducing patented technology w/o permission?

No, he is doing it WITH Monsanto's own guidelines, they allow their beans to be regrown, they just figured no one would figure out which beans were which.

If that isn't a patent infringement, why not?

The only way he is infringing on the patent is if Monsanto didn't already allow the second generation beans to be sold as commodity seed. Otherwise you have to claim that EVERY farmer who buys those commodity beans and grows Monsanto seed in their crop is then violating the patent, an argument that not even Monsanto makes. All this farmer did was figure out which of his cattle were Wagyu.

[brandymac27]

I don't know much about patent laws, but if what Asbury said is correct (that they have NO claim on 2nd generation beans), then doesn't that basically mean Farmer Bob can pretty much do whatever the heck he wants with those beans?

Also, my question is this, and it may be a stupid one but I need clarification. when we say the "technology" is patented, are talking about the idea itself?

I guess what I'm getting at is would it be a patent infringement if Farmer Dan decides to do the same exact thing Monsanto is doing but uses glufosinate instead of RoundUp (glyphosate)?

[PeterMP]

Because Monsanto has a lot of very good lawyers.

Neither are the commodity beans covered by Monsanto's patent

No, he is doing it WITH Monsanto's own guidelines, they allow their beans to be regrown, they just figured no one would figure out which beans were which.

The only way he is infringing on the patent is if Monsanto didn't already allow the second generation beans to be sold as commodity seed. Otherwise you have to claim that EVERY farmer who buys those commodity beans and grows Monsanto seed in their crop is then violating the patent, an argument that not even Monsanto makes. All this farmer did was figure out which of his cattle were Wagyu.

I believe you are confusing Monsanto's liscensing agreements with patent infringements.

I don't sign any agreement when I buy most products that I buy to not reproduce the technology, but if I did, they'd hit me with a patent infringement lawsuit.

I don't believe he's being sued from violating the liscensing agreement. He was sued for infringing on their patent. He's reproducing their technology without permission and they have a patent on their technology where their technology is DNA.

It doesn't matter how I come upon the information/material, I can't make phones that violate Apple's patents, even if I don't own one or have a contract with Apple.

The DNA in the plants is patented. By growing the plants in a manner that ensures that they will mantain that technology (i.e. spraying them with roundup so plants without the genes are killed), he's knowingly and intentionally infringing on their patent.

He's producing patented technology w/o permission.
---------- Post added February-18th-2013 at 11:28 PM ----------

Also, my question is this, and it may be a stupid one but I need clarification. when we say the "technology" is patented, are talking about the idea itself?

I guess what I'm getting at is would it be a patent infringement if Farmer Dan decides to do the same exact thing Monsanto is doing but uses glufosinate instead of RoundUp?

The general idea nor the process are patented.

The, 'this plant is going to be resistant to X because I know what causes resistance to X and I'm going to put DNA in this plant so it is resistant to X' where X and the thing that makes it resistant to X are specific.

Bayer did the samething already with glufosinate.

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

[AsburySkinsFan]

I don't know much about patent laws, but if what Asbury said is correct (that they have NO claim on 2nd generation beans), then doesn't that basically mean Farmer Bob can pretty much do whatever the heck he wants with those beans?

Monsanto contractually obligates the farmers to sell their unused second generation beans so that the farmers are in theory forced to buy Monsanto seed the following year. Now, (and this is where Monsanto went wrong) Monsanto allowed the second gen seed to be mixed with other seeds so that it would be diluted by the non-Monsanto seed, meaning that every farmer who bought commodity seed was already replicating Monsanto seed technology and doing so legally. Monsanto is suing this farmer because he killed off all the beans that weren't Monsanto in the commodity seed he purchased which Monsanto has no claim on since they are second generation beans.

Also, my question is this, and it may be a stupid one but I need clarification. when we say the "technology" is patented, are talking about the idea itself?

Monsanto claims the patent on the DNA.

[brandymac27]

The general idea nor the process are patented.

The, 'this plant is going to be resistant to X because I know what causes resistance to X and I'm going to put DNA in this plant so it is resistant to X' where X and the thing that makes it resistant to X are specific.

Bayer did the samething already with glufosinate.

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

Gotcha. Thanks for the info.

[AsburySkinsFan]

He's reproducing their technology without permission and they have a patent on their technology where their technology is DNA.

As does EVERY farmer who grows commodity seed that contains Monsanto seed....Monsanto has ZERO claim on second generation seed....ZERO.

It doesn't matter how I come upon the information/material, I can't make phones that violate Apple's patents, even if I don't own one or have a contract with Apple.

If Apple allowed people to make their phones in the hope that they wouldn't figure out that they were making Apple phones then the blame falls on Apple. That's what happened here. You keep trying to make this an issue of manufacturing a phone or car part from scratch. That is NOT what this farmer did. What he did was buy commodity seed which contained Monsanto seed (allowed by Monsanto) then he killed off all weaker seed. He didn't recreate anything, he did what he was legally allowed to do and what Monsanto forces all non-buyers to do with commodity seeds.

[brandymac27]

Monsanto contractually obligates the farmers to sell their unused second generation beans so that the farmers are in theory forced to buy Monsanto seed the following year. Now, (and this is where Monsanto went wrong) Monsanto allowed the second gen seed to be mixed with other seeds so that it would be diluted by the non-Monsanto seed, meaning that every farmer who bought commodity seed was already replicating Monsanto seed technology and doing so legally. Monsanto is suing this farmer because he killed off all the beans that weren't Monsanto in the commodity seed he purchased which Monsanto has no claim on since they are second generation beans.

Monsanto claims the patent on the DNA.

Ok, yeah. I gotta say I pretty much agree with you on this. It seems what they're doing is attempting to monopolize the entire soybean/seed industry given that they had to have known their beans would end up mixed in with the non genetically engineered beans via the elevators (especially since there is no claim on their 2nd generation beans). They thought they were being smart, but in this case, Farmer Bob was just a little bit smarter.

[PeterMP]

As does EVERY farmer who grows commodity seed that contains Monsanto seed....Monsanto has ZERO claim on second generation seed....ZERO.

If Apple allowed people to make their phones in the hope that they wouldn't figure out that they were making Apple phones then the blame falls on Apple. That's what happened here. You keep trying to make this an issue of manufacturing a phone or car part from scratch. That is NOT what this farmer did. What he did was buy commodity seed which contained Monsanto seed (allowed by Monsanto) then he killed off all weaker seed. He didn't recreate anything, he did what he was legally allowed to do and what Monsanto forces all non-buyers to do with commodity seeds.

Monsanto ALWAYS has a claim on the production of their patented technology. That's the way patents work. You can't produce patented technology w/o permission irrgardless of what its been through.

But then he grew the seed in a manner that they would produce more seeds that was also roundup resistant and hence DID recreate something containing patented technology.

Hence, he's producing a patented product without permission.

http://sblog.s3.amazonaws.com/wp-con...00943262_1.pdf

“[O]nce a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready® technology and the next generation of seed develops, the grower has created a newly infringing article.”

"The court likened the creation of a new generation of soybeans to the reconstruction of a patented article, which is not authorized merely because the patentee has authorized the sale of one copy of that article."

I keep doing what I'm doing because that's what the court has said (and I personally think it's reasonable).

Is he not intentionally and knowingly reproducing patented technology?

Buying the seed isn't a violation of the patent. I don't think even growing it should be a violation of the patent (though I'm not sure the courts agree). Growing it in a manner that ensures that you are reproducing a patented item is a violation of the patent (which the courts have plainly held).

[AsburySkinsFan]

Monsanto ALWAYS has a claim on the production of their patented technology. That's the way patents work. You can't produce patented technology w/o permission irrgardless of what its been through.

They surrendered that claim when they forced farmers to sell their excess beans to granaries knowing their patented beans would be regrown.

---------- Post added February-19th-2013 at 12:01 AM ----------

They thought they were being smart, but in this case, Farmer Bob was just a little bit smarter.

Never under-estimate Farmer Bob, at my first church in Kentucky I had a farmer who stood beside Senator Mitch McConnell on the steps of the Capitol, and travelled to China on trips for the tobacco growers industry, he understood the world market better than many economists. After my first conversation with him I saw so clearly that he was more than his Tractor Supply Store jeans and plaid shirts, he was a brilliant man and an excellent businessman. Attending his funeral was a very sad time.

[PeterMP]

They surrendered that claim when they forced farmers to sell their excess beans to granaries knowing their patented beans would be regrown.

I'm sorry that's not how patents work (have you ever worried about patents?)

Actually, surrendering a patent is non-trivial thing. Surrendering a patent or a patent claim actually requires you to do things through the patent office.

You can easily voluntarily not enforce a patent (that is you can hold the patent and not sue people for violating it), but you surrending a patent or patent claim is non-trivial and not something Monsanto could or would do accidently.

http://www.uspto.gov/web/offices/pac/mpep/s1401.html

"Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue."

In other words, even if Monsanto didn't get their patent right, as long as they weren't deceptive in the manner, they can re-file their patent (surrdender the old one) and get a new one and he'd still be infringing on the patent.

In this particular case the court said:

“[w]hile farmers, such as Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot ‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.”"

Again, I'd argue they can even plant it in the ground. The issue becomes when they do so that ensures that you are actually reproducing their patented item.


Again, simple question, was he knowingly and purposely producing patented technology?

[Larry]

I don't know much about patent laws, but if what Asbury said is correct (that they have NO claim on 2nd generation beans), then doesn't that basically mean Farmer Bob can pretty much do whatever the heck he wants with those beans?

Also, my question is this, and it may be a stupid one but I need clarification. when we say the "technology" is patented, are talking about the idea itself?

1). Problem is, ASF is incorrect. Monsanto owns a patent on the gene. On a DNA code. First generation, second generation, third, 27th, doesn't matter. They own the life form.

2). Now, this is something I've argued, in other contexts. As I understand it, no, a patent doesn't cover what something DOES. It covers a method for accomplishing a goal.

If somebody else comes up with a way to make plants resistant to Roundup, then they can do whatever they want with their invention.

(Although it would appear that in at least some cases, courts HAVE ruled that yes, a patent covers what an invention DOES, not just how it does it. Ruling that a patent says that nobody is allowed to make an invention that does the same thing as my invention. I disagree with such. Notion, but apparently courts have sometimes ruled that way).

---------- Post added February-19th-2013 at 12:23 AM ----------

http://sblog.s3.amazonaws.com/wp-con...00943262_1.pdf

“[O]nce a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready® technology and the next generation of seed develops, the grower has created a newly infringing article.”

"The court likened the creation of a new generation of soybeans to the reconstruction of a patented article, which is not authorized merely because the patentee has authorized the sale of one copy of that article."
.

Pointing out that the above quote doesn't say that spraying crops with roundup is infringement. It says that planting seeds and harvesting them is.

As does your continued use of the phrase "reproducing a patented item".

[PeterMP]

Pointing out that the above quote doesn't say that spraying crops with roundup is infringement. It says that planting seeds and harvesting them does.

As does your continued use of the phrase "reproducing a patented item".

Like I've said, I'm not sure where the Courts will come down on this exactly. Hopefully, that's why the Supreme Court has taken the case.

I try and keep adding knowingly and purposely (or something similar) when I write it. If you simply took seeds from the local grain elevator and grew them, you wouldn't knowingly and purposely be reproducing their technology (you might suspect that you are because a large number of farmers use them and so it is likely that they are in there, but the batch you got might be from a farmer that didn't use their technology so you wouldn't know it the same way he did where he sprayed his field to make sure he ONLY had what he wanted).

And certainly as generations went by, you wouldn't know if the genes were kept or lost (if you didn't keep spraying them).

[twa]

Again, I'd argue they can even plant it in the ground. The issue becomes when they do so that ensures that you are actually reproducing their patented item.[/FONT]


Again, simple question, was he knowingly and purposely producing patented technology?

I'd say he was just producing soybeans unless he was selling them for seed.
but I admit keeping some back for seed is problematic

there has to be a limit to the patent though

[PeterMP]

Monsanto created a monopoly and it needs to be broken up, they have also been ruthless in attacking people who through no fault of their own had their beans pollenated with Monsanto pollen, they are everything that is wrong with the agricultural industry in America.

I thought it would be useful to see where this conversation started. We've gone from evil Monsanto sued people who had their beans pollenated with Monsanto pollen (which nobody has presented evidence of in this thread and isn't the case here), and they are a monopoly (I've already quoted where you could buy patented seeds, but not w/ Monsanto technology and even get unpatented seeds).

Essentially to Monsanto is dumb and created liscensing agreements that would cause them to "surrender" their patent rights and were out smarted by a farmer (which would at best be a complex legal issue).

---------- Post added February-19th-2013 at 12:40 AM ----------

I'd say he was just producing soybeans unless he was selling them for seed.
but I admit keeping some back for seed is problematic

there has to be a limit to the patent though

He was producing MORE soybeans (in a manner that was knowingly and purposely dependent on the patented technology where the MORE soybeans also contain the technology).

This patent expires next year. For a while there was a concern that Monsanto would prevent people from using this generation of roundup ready seeds (although I don't know how they'd legally do that given the current situation. Other than the patent infringement, they have no case against this guy so after next year, he'd be free to do what he's doing now, much less another company coming in and generating the same genetically altered plants), but they've said they won't.