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

[PeterMP]

Forgive me if I don't want to just assume that no patent holder will ever, in the future, go after people for unintentional infringement. (In fact, I think it's a safe bet that you will completely agree with me that patent holders have gone after unintentional infringement. And won. That precedent is already well established.)

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That said, though, you do raise an interesting point.

As long as patent infringement is handled as a civil matter, then the patent owner, while he doesn't have to prove intent, does have to prove harm to himself, and/or benefit to the infringer.

And I could see how that limitation might shield the inadvertent infringer.

It's at least a possibility.

The case in this thread isn't about unintentional infringement. The analogy you brought up the the elephant wasn't about unintentional infringement, and the scenario you laid out in the post that I replied to wasn't about stopping unintended infringement (realistically, it woudl be a massively complex system that would have shunted the responsibility to Monsanto and essentially made their patents useless) so you'll have to excuse me if I didn't realize that's what you were attempting to address unintentional infringement.

I believe that the criminal penalties for patent infringement are also tied to benefit/harm so even if there is a criminal prosecution and there was no harm/benefit the penalty would be non-exsistent (I guess technically maybe you could be convicted w/o a penalty?).

I'm also not of the opinion that we need a law to describe every possibility, especially as generated through the courts. For now, if the courts say, you can't intentionally reproduce and profit from Monsanto's patented technology w/o their permission, I'm satisfied.

If something else becomes an issue or is likely to become an issue when there are actual details to worry about in terms of what the issue is, I'll worry about it.

If yo want to lay out a scenario where that's the case that seems like it might be relevant, then that would be worth talking about, but isn't really in this case and with this technology.

[PeterMP]

How can you say that if 80% of the soybean crops are doing so?

it is the new normal

So if Monsanto would have priced them higher and only taken over 20% of the market (freezing out mostly small farmers), then the same EXACT technology wouldn't be "normal" and they would have more/better patent protection?

How does that make any sense?

Over the course of this guys life time, it was not normal for him to spray roundup on his soybeans. He knew what he was doing was not based on normal soybeans, but specially engineered and patented ones.

[Larry]

The case in this thread isn't about unintentional infringement. The analogy you brought up the the elephant wasn't about unintentional infringement, and the scenario you laid out in the post that I replied to wasn't about stopping unintended infringement (realistically, it woudl be a massively complex system that would have shunted the responsibility to Monsanto and essentially made their patents useless) so you'll have to excuse me if I didn't realize that's what you were attempting to address unintentional infringement.

I believe that the criminal penalties for patent infringement are also tied to benefit/harm so even if there is a criminal prosecution and there was no harm/benefit the penalty would be non-exsistent (I guess technically maybe you could be convicted w/o a penalty?).

I'm also not of the opinion that we need a law to describe every possibility, especially as generated through the courts. For now, if the courts say, you can't intentionally reproduce and profit from Monsanto's patented technology w/o their permission, I'm satisfied.

If something else becomes an issue or is likely to become an issue when there are actual details to worry about in terms of what the issue is, I'll worry about it.

If yo want to lay out a scenario where that's the case that seems like it might be relevant, then that would be worth talking about, but isn't really in this case and with this technology.

Actually, I thought of one, while at lunch. (And, I will point out: I don't see this, or any, court, ruling that this person is guilty because it was intentional. For one thing, I'm under the impression that the precedent has already been firmly established that intent isn't necessary).

But, lets just suppose that the NEXT case involves soybeans that have been engineered to produce 10% bigger yields. (Or some other advantage that applies to all plants, not just cases where the farmer does something out of the ordinary).

Now, suddenly, we can no longer assume that an inadvertent infringer is immune because he didn't profit, or harm Monsanto, with his infringement. He did both. (Even though he may not even be aware of it).

[pjfootballer]

Bowman should switch to growing hemp. Seems like it's a better cash crop.

[twa]

He knew what he was doing was not based on normal soybeans, but specially engineered and patented ones.

beans which he purchased w/o restriction or warranty

the seed companies clearly market the patented seed as different from soybeans bought at the market,with special care and application of additional treatments,as well as quality control....which is why they label it seed to sell it

because you create or modify a product should not grant you control over it's use if it is sold w/o restriction....most certainly not in a case where it is used as originally intended

if the farmer thought the mix he bought was only 20% resistant he would probably treat it differently

[dsciambi]

It won't happen 100% in a single generation, but over time, the genes would be lost.

And no that isn't an assumption.

**EDIT**
I can't find anything concrete on the stability of the roundup resistant genes w/ respect to at what rate they would be lost, but genes that are not used are lost as part of evolution.

Essentially, there is no penalty for mantaining the gene in a functional state. The rate depends partly on the organism and the conditions and how the gene was engineered into the organism.

Do what now? Why would the genes be lost? I think you need to take a biology class. Humans have plenty of genes which either don't do anything, or don't serve a purpose that is advantageous to the species (e.g. any genetic disorder). What makes a gene in soybeans any differently? Does soybean DNA know to mutate just that specific gene to "purge" it from future generations?

To me, the idea that a company can patent genetic material is absolutely absurd. I don't know how anyone can side with a corporation on that issue.

Think of it with dog breeding. Say there's a breeder who comes up with some new, super awesome dog. They then patent whatever gene(s) that make that dog super awesome. They bred for it, so clearly they own it. This is slightly different from Monsanto since I believe they genetically spliced the gene, but both circumstances are genetic modifications. Now you go out and start breeding those dogs. How is it possibly ok for you to be sued in this circumstance?

[Larry]

I'd rather stay away from a discussion on whether patenting genes should be allowed at all. Just like I'd rather avoid discussions on whether we should be allowed to engineer food. (Or anything else, for that matter.)

(Mainly because such discussions tend to quickly turn into conspiracy theory threads.)

[DjTj]

Two legal points:

• There is no intent requirement for patent infringement. Willfulness only matters for calculating damages.
• Patent infringement is a civil issue. There is no criminal patent infringement under federal law.

An update on the oral argument today:

WASHINGTON (AP) — The Supreme Court appeared likely Tuesday to side with Monsanto Co. in its claim that an Indiana farmer violated the company's patents on soybean seeds that are resistant to its weed-killer.

None of the justices in arguments at the high court seemed ready to endorse farmer Vernon Hugh Bowman's argument that cheap soybeans he bought from a grain elevator are not covered by the Monsanto patents, even though most of them also were genetically modified to resist the company's Roundup herbicide.

Chief Justice John Roberts wondered "why in the world would anybody" invest time and money on seeds if it was so easy to evade patent protection.

http://www.npr.org/templates/story/s...ryId=172366720

Some additional facts about the case from that article:

The 75-year-old Bowman bought the expensive seeds for his main crop of soybeans, but decided to look for something cheaper for a risky, late-season soybean planting.

He went to a grain elevator that held soybeans it typically sells for feed, milling and other uses, but not as seed.

Bowman reasoned that most of those soybeans also would be resistant to weed killers, as they initially came from herbicide-resistant seeds too. He was right, and he repeated the practice over eight years. In 2007, Monsanto sued and won an $84,456 judgment.

The farmer doesn't seem that sympathetic to me, and it looks like the Supreme Court is going to rule against him.

[AsburySkinsFan]

beans which he purchased w/o restriction or warranty

This is all you need to know right here. These aren't car parts that we reverse engineered, they aren't pink elephants that wandered off , they are legally acquired beans, legally sold, legally planted and legally sprayed. In fact they were purchased in the very way that Monsanto allows them to be purchased.

---------- Post added February-19th-2013 at 03:29 PM ----------

An update on the oral argument today: http://www.npr.org/templates/story/s...ryId=172366720

Some additional facts about the case from that article: The farmer doesn't seem that sympathetic to me, and it looks like the Supreme Court is going to rule against him.

Surprise, surprise, from the Court that brought you such wonderful rulings as Citizen's United, another victory for corporate monoliths.

[twa]

Chief Justice John Roberts wondered "why in the world would anybody" invest time and money on seeds if it was so easy to evade patent protection.

People buy branded products to get better quality and certain results...the reason most buy them to start with....including this farmer obviously

buying the product under a generic label ,or included in gross lots, should not be violating the patent

[DjTj]

This is all you need to know right here. These aren't car parts that we reverse engineered, they aren't pink elephants that wandered off , they are legally acquired beans, legally sold, legally planted and legally sprayed. In fact they were purchased in the very way that Monsanto allows them to be purchased.

He is not being accused of illegally acquiring beans, illegally planting the beans, or illegally spraying the beans. All of those steps were legal. But the question the Supreme Court is deciding is whether it was unlawful for him to grow a new crop of beans (that included a copy of Monsanto's patented genes) and then sell those new beans.

Surprise, surprise, from the Court that brought you such wonderful rulings as Citizen's United, another victory for corporate monoliths.

While this decision will likely favor the large corporation here, the history of patent protection for plants has somewhat more humble beginnings:

Born in Lancaster, Massachusetts, Burbank was brought up on a farm and attended Lancaster Academy for high school. At age 22, he purchased a 17-acre tract near Lunenburg where he began a 55-year plant breeding career.

In 1871 he developed the Burbank potato. He sold the rights for the potato for $150, which he used to travel to Santa Rosa, California. In Santa Rosa, he established a nursery garden, greenhouse, and experimental farms that have become famous throughout the world.

He worked by effecting multiple crosses of foreign and native strains to obtain seedlings, which he grafted onto fully developed plants for rapid assessment of hybrid characteristics.

Burbank carried on his plant hybridization and selection on a huge scale. At any one time he maintained as many as 3,000 experiments involving millions of plants. In his work on plums, he tested about 30,000 new varieties. The Plant Patent Act of 1930 amended U.S. patent law to permit protection of new and distinct varieties of asexually reproduced plants, other than tuber-propagated plants. This legislation resulted from the growing awareness that plant breeders had no financial incentive to enter plant breeding because they could not exercise control over their discoveries. In supporting this legislation, Thomas A. Edison testified: ' This (bill) will, I feel sure, give us many Burbanks.' Plant Patent Nos. 12, 13, 14, 15, 16, 18, 41, 65, 66, 235, 266, 267, 269, 290, 291, and 1041 were issued to Burbank posthumously.

http://www.invent.org/hall_of_fame/21.html

Chief Justice John Roberts wondered "why in the world would anybody" invest time and money on seeds if it was so easy to evade patent protection.

People buy branded products to get better quality and certain results...the reason most buy them to start with....including this farmer obviously

buying the product under a generic label ,or included in gross lots, should not be violating the patent

Generics are allowed after a patent expires, but inventors who receive patents get twenty years of exclusive rights before generics can enter the market.

Article One, Section 8, Clause 8 of the Constitution grants this power to Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;…"

How far that "exclusive right" goes is for Congress and the courts to decide, but it seems like the Supreme Court will find that what this farmer did was copying that violated Monsanto's patent rights. If you disagree with that, you'll have to ask Congress to pass new laws exempting the reproduction of plants from patent infringement. And Monsanto will probably make its customers sign an even longer purchase agreement when they buy their seeds.

[rictus58]

pardon my ignorance, but how can Monsanto collect beans from someone's property if they aren't a customer?

[PeterMP]

Do what now? Why would the genes be lost? I think you need to take a biology class. Humans have plenty of genes which either don't do anything, or don't serve a purpose that is advantageous to the species (e.g. any genetic disorder).

http://www.ncbi.nlm.nih.gov/pubmed/22835904

"Positionally biased gene loss after whole genome duplication: evidence from human, yeast, and plant."

http://www.ncbi.nlm.nih.gov/pubmed/21679462

"The dynamics of vertebrate homeobox gene evolution: gain and loss of genes in mouse and human lineages."


ALL organisms "lose" genes that aren't being selected for, including humans.

In the case of the genetic disorders, the gene has a "good" function and a change in the gene (i.e. a mutation) makes it "bad" creating the disorder.

The pressure is to keep the "good" gene.

If there isn't selective pressure to keep a gene, the gene is going to gain mutations that are going to make ineffective (which is likely to happen first), or a mutation will happen that will make it so the gene is no longer transcribed or translated (e.g. a mutation in the translational start site).

http://scienceblogs.com/aetiology/20...-by-gene-loss/

Though we do tend to lose them very slowly, but we also have long propogation times and produce fewer off spring and have more societal support in terms of helping "defective" organisms than soybeans.

I'd suspect in terms of real time this to happen much faster in soybeans (with the caveats that I included before).

Piece of advice, next time you think you know something take 30 sec and run a google search.

https://www.google.com/#hl=en&sclien...w=1003&bih=574

https://www.google.com/#hl=en&sclien...w=1003&bih=574

Or try thinking that the other person might know more about the topic than you when writing your response.

[twa]

pardon my ignorance, but how can Monsanto collect beans from someone's property if they aren't a customer?

They don't want the beans....it is money they want

Peter ....he bought soybeans and sells them as just soybeans, the traits of the beans he purchased should not preclude their use

[DjTj]

Peter ....he bought soybeans and sells them as just soybeans, the traits of the beans he purchased should not preclude their use

If he was just re-selling the soybeans that he bought, there would be no case. He is before the Supreme Court because he is selling new soybeans that were grown from the soybeans that he bought.