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

[PeterMP]

INow, though, PeterMP,

I'm not seeing anything in the court's rulings that you're citing, or in your stated position, any more, that says that what this person would be, or should be, legal, if he hadn't known about it.

When we started off, your position was that well, if he hadn't sprayed the crop with Roundup, then what he did was fine.

Now it's "he planted patented beans and raised them". (And that seems to be the court's ruling, too.)

I'm not seeing anything here, in the court quotes you're making or in your posts, any more, that in any way says that if he hadn't sprayed Roundup on his crops, that things would be in any way different.

Could you explain?

My position hasn't changed. I think it is confusing where the line actually is based on the court rulings, and I presume that's why the Supreme Court has taken this case.

Monsanto has been very clear in all of its cases, to my knowledge, that this is intentional infringement, and I support them in those cases.

If the courts start finding that unintentional infringement is in cases like this are cause for penalties, I think that'll be wrong and will absolutely support changing the law.

Sometimes to make the point directly, you have to drop the extas. People seem to be having enough trouble in this thread with the basics.

Also, maybe you missed post #123.

[JMS]

This is why the Court accepted the case. Two significant principles of law are clashing, and they need to sort it out.

I'm no fan of Monsanto, but I'm not going to pretend that they don't have a good argument here from a patent usage point of view..

I also think the Monsanto argument cuts across many industries such as medicine and other bioengineering concerns.. like livestock..

---------- Post added February-19th-2013 at 09:25 PM ----------

Just curious, what's the 2nd "significant principle of law", here?

It's a case between property rights vs intellectual property infringement...

You don't need to have knowingly used Monsanto's seed for them to come after you. You could have puchased seed in good faith from a neighbor,
or a different seed seller and still get sued by Monsanto... That's the intellectual property rights...

The property rights are farmers who have grown their own strains for decades are being suid because their strains now contain traces of Monsanto's seed.
That seed grown on farms but cross polinated across farms has always for hundreds, thousands of years been the farmers property, now maybe not.

[PeterMP]

Yes the issue is there was a famous case involveing a Canadian Farmer (Monsanto vs Schmeiser) who claimed cross polination but latter admitted he had actually purchased some seed from a neighbor.. Monsanto's lawsuit was thus based on that planted their seed, knowingly or not... Ultimately Monsanto won a 5-4 victory in that Mr Schmeiser did not have the right to plant "their seed", but Mr. Schmeister won in that he did not have to pay Monsanto any money as the corn traceable to Monsanto's seed was so small the judges found it offered no economic advantage on his farm

In every single case in you links, but one, the person either had bought Monsanto seed or got it from somebody else. In other words, they had patented technology NOT from cross pollination.

There appears to have been one case where Monsanto didn't/couldn't demonstrate that the person did actually have the seed, and the person didn't get sued or settle with Monsanto (Monsanto appears to have dropped the issue legally, but did blacklist them buying any patented Monsanto seed).

For the like the 6th time in this thread:

http://www.npr.org/blogs/thesalt/201...ainst-monsanto

"A New York federal court today dismissed a lawsuit against agribusiness giant Monsanto brought by thousands of certified organic farmers. The farmers hoped the suit would protect them against infringing on the company's crop patents in the future."

Instead, the judge found that plaintiffs' allegations were "unsubstantiated ... given that not one single plaintiff claims to have been so threatened." The ruling also found that the plaintiffs had "overstate[d] the magnitude of [Monsanto's] patent enforcement." Monsanto brings an average of 13 patent-enforcement lawsuits per year, which, the judge said, "is hardly significant when compared to the number of farms in the United States, approximately two million."

That's right, the people sued Monsanto because they said that Monsanto was going to sue them for cross pollination, but in fact not a single one of them had even been threatened to be sued by Monsanto.

[twa]

Just curious, what's the 2nd "significant principle of law", here?


What's the compelling principle, or law, on the farmer's side?

The principle I have been arguing , fair use of a unrestricted purchase
growing beans from beans should be allowed,keeping the refined product that mirrors a patented one is depriving Monsanto though....selling it as what you bought it as should not be

http://abcnews.go.com/Politics/india...8540373&page=2

"The Exhaustion Doctrine permits you to use the goods that you buy," Justice Sonia Sotomayor said. "It never permits you to make another item from the item that you bought."

...
Several of the justices focused not on the purchase of the seed from the grain elevator, but the replanting of those seeds for subsequent crops.

[Larry]

Of course they did. Because buying patented soybeans isn't infringement. Making more patented soybeans is.

And you keep throwing around this term "unrestricted". It's not true. Those beans are patented. Even after they're sold. Even when they're mixed with non-patented beans. Even if they're put in a box that isn't labeled "patented".

---------- Post added February-20th-2013 at 10:51 AM ----------

It's a case between property rights vs intellectual property infringement...

You don't need to have knowingly used Monsanto's seed for them to come after you. You could have puchased seed in good faith from a neighbor,
or a different seed seller and still get sued by Monsanto... That's the intellectual property rights...

The property rights are farmers who have grown their own strains for decades are being suid because their strains now contain traces of Monsanto's seed.
That seed grown on farms but cross polinated across farms has always for hundreds, thousands of years been the farmers property, now maybe not.

But I don't see this case producing a ruling on the legality of unintentional infringement. Because this case doesn't involve unintentional infringement.

Maybe it's just me, but I assume that if the court wanted to rule on whether cross-pollination constitutes infringement, then they would have waited for a case that involves cross-pollination.

Although maybe I could invent an imaginary way where they could do it.

I assume that, in this case, the jury was instructed to ignore whather the infringement was intentional or not, and to rule based strictly on whether patented beans were reproduced. I suppose that the court could send it back downstairs, with instructions that a new trial must be held, and that the jury must be instructed to only convict if defendant knowingly reproduced patented beans.

I assume that the second jury would still convict. Because he sprayed his crops with Roundup, thus proving that he believed his crop not only contained patented plants, but that the majority were, and proving that he was willing to kill off the non-patented plants, just so that he could raise a crop that was entirely patented.

The guy still gets convicted. But he gets convicted because the court sets a higher bar, and he clears the higher bar.

[twa]

Of course they did. Because buying patented soybeans isn't infringement. Making more patented soybeans is.

And you keep throwing around this term "unrestricted". It's not true. Those beans are patented. Even after they're sold. Even when they're mixed with non-patented beans. Even if they're put in a box that isn't labeled "patented".

unrestricted as in w/o the contractual burden they impose to purchase.normally

A primary purpose of beans is growing beans, a reasonable use whether sold as seed or commodity beans.
The presence of DNA or traits in things that naturally reproduce should not preclude a purchaser of a product (that the patent holder ALLOWED to be sold) from use of that product

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

the copy issue should only impact what he does with the resulting crop....selling it as soybean causes the patent holder no harm.....Monsanto clearly allowed the beans to be freely sold to him, hence the exhaustion doctrine should allow growing soybean from them

refining it to use as seed probably violates the patent

[PeterMP]

unrestricted as in w/o the contractual burden they impose to purchase.normally

A primary purpose of beans is growing beans, a reasonable use whether sold as seed or commodity beans.
The presence of DNA or traits in things that naturally reproduce should not preclude a purchaser of a product (that the patent holder ALLOWED to be sold) from use of that product

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

the copy issue should only impact what he does with the resulting crop....selling it as soybean causes the patent holder no harm.....Monsanto clearly allowed the beans to be freely sold to him, hence the exhaustion doctrine should allow growing soybean from them

refining it to use as seed probably violates the patent

From your own wiki link:

"Note, however, that under current law, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew, unless it is specifically authorized by the patentee."

And there is no common, normal, or reasonable use exception.

[twa]

From your own wiki link:

"Note, however, that under current law, the patent owner retains the right to exclude purchasers of the articles from making the patented invention anew, unless it is specifically authorized by the patentee."

And there is no common, normal, or reasonable use exception.

A right they did not exercise at purchase despite allowing the sale of a product CLEARLY designed to reproduce....a issue they addressed at other sales

If you want to assert the DNA makes them the patented seed Monsanto markets for reproducing it is kind of hard to claim it should not be used for that purpose.

it is made for reproducing if it is patented SEED, they knew it and knowingly allowed it to be sold w/o the restriction

Reproducing soybeans from it is the purpose of a patented soybean seed

[PeterMP]

A right they did not exercise at purchase despite allowing the sale of a product CLEARLY designed to reproduce....a issue they addressed at other sales

If you want to assert the DNA makes them the patented seed Monsanto markets for reproducing it is kind of hard to claim it should not be used for that purpose.

it is made for reproducing if it is patented SEED, they knew it and knowingly allowed it to be sold w/o the restriction

Reproducing soybeans from it is the purpose of a patented soybean seed

Read it again.

They don't have to authorize that you can't replicate it. They have to POSTIVELY authorize that you CAN. You can't reproduce it unless they AUTHORIZE that you CAN.

The inability to NOT reproduce it is inherent in the patent.

[JMS]

In every single case in you links, but one, the person either had bought Monsanto seed or got it from somebody else. In other words, they had patented technology NOT from cross pollination.

I disagree with that. I gave three cases, none involved folks who knowingly used Monsanto's seed.

The Runyon's, 900 acre farm. No record of ever buying Monsanto's seed from Monsanto, or anybody else. Monsanto invaded their farm, sued them, could not support their claim and gave up on the lawsuit.
http://www.cbsnews.com/8301-18563_162-4048288.html

The Nelsons, 8000 acre farm, They had an agreement with Monsanto, they planted 80 acres with Monanto's seed one year, 1,500 acres another year, Independent board found they had not violated that agreement or saved any of that seed. Monsanto still went after their entire crop in a subsequent year with only trace amounts of their GMA plants pressent.
http://www.nelsonfarm.net/issue.htm

Schmeiser, 9000 acre Farm, No agreement with Monsanto, only trace amounts of their GMA plants on his farm. Doesn't even use Round up. Supreme Court of Canada found he enjoyed no economic benefit from Monsanto's seed, but still had some of Monsanto's crop in his fields.
http://en.wikipedia.org/wiki/Monsant...._v._Schmeiser

In each case only small amounts of crops from Monsanto's seed was found... No economic benefit was gained, Monsanto claims they knowingly used their seed, but why would they do that without any economic benefit? How did they do it with no records of having done it? Why did an independent panel find the only farm which had purchased small amounts of Monsanto's seed in previous years had not used any of the seed from those plants.?

There appears to have been one case where Monsanto didn't/couldn't demonstrate that the person did actually have the seed, and the person didn't get sued or settle with Monsanto (Monsanto appears to have dropped the issue legally, but did blacklist them buying any patented Monsanto seed).

Only one of the three cases did the farmer ever have Monsanto's seed. In that case the agricultural board found he didn't use Monsanto's seed for the crop under question..
Neither of the two other farmers had ever purchases seed from Monsanto' directly. They had no deal with Monsanto, no signed agreement with Monsanto.

One guy Schmeiser claimed he got trace amounts of Monsanto seed via cross pollination. Monsanto claims it was introduced when he purchased some of his neighbors seed.
The other guy had no connection with Monsanto what so ever.

For the like the 6th time in this thread:

http://www.npr.org/blogs/thesalt/201...ainst-monsanto

(from your source)
The company, meanwhile, asserts that it doesn't exercise its patent rights when trace amounts of its patented traits inadvertently end up in farmers' fields.

That's right, the people sued Monsanto because they said that Monsanto was going to sue them for cross pollination, but in fact not a single one of them had even been threatened to be sued by Monsanto.

And yet in Monsanto vs Schmeiser the jugement finding for Monsanto 5-4 in Canada's supreme court found exactly that.

(see judgement)
the court held that he did not have to pay Monsanto his profits from his 1998 crop, since the presence of the gene in his crops had not afforded him any advantage and he had made no profits on the crop that were attributable to the invention.
http://en.wikipedia.org/wiki/Monsant...eiser#Judgment

Monsanto went after a farmer with such small amounts of monsanto seed in his feild that it gave him no economic advantage. The very definition of "trace amounts".

[twa]

you read it again
If you allow a product whose purpose is to reproduce to be sold w/o restriction consent is implied .

Now if you want to claim they are now soybeans for food,rather than patented seed........

[DjTj]

you read it again

no you read it again.

But actually, twa, I applaud you for coming back today with the real argument at the crux of the issue rather than the romantic cowboy farmer arguments that were being advanced yesterday.

If you allow a product whose purpose is to reproduce to be sold w/o restriction consent is implied .

This is a reasonable argument, but the law is very much unclear on what is or isn't implied in this situation. This was addressed pretty thoroughly in the arguments yesterday (and even more thoroughly in the briefs). Judging from the Justice's comments and questions, it seems unlikely that this "implied consent" argument is going to win.

Here is the farmer's lawyer arguing with a few Justices on that point:

JUSTICE SOTOMAYOR: I'm sorry. The Exhaustion Doctrine permits you to use the good that you buy. It never permits you to make another item from that item you bought. So that's what I think Justice Breyer is saying, which is you can use the seed, you can plant it, but what you can't do is use its progeny unless you are licensed to, because its progeny is a new item.

MR. WALTERS: This is obviously a brand-new case where we're dealing with the -- the doctrine of patent exhaustion in the context of self-replicating technologies. So what you have here is if you take the Federal Circuit's view, then you have no -- you have no exhaustion at all for someone to practice the invention. Sure, you can do all the things that you talked about, Mr. Breyer -- or Justice Breyer, but that has nothing to do with the -- or with the invention.
So you're taking the Exhaustion Doctrine for self-replicating inventions, you're modifying this Court's case law substantially, and that's something that ought to be done in Congress. In fact -

JUSTICE GINSBURG: Well, you just said that -- that we haven't had a case involving self-replicating. I mean, the Exhaustion Doctrine was shaped with the idea of an article; there was an article that you could use and then you use it and it's used up. But we haven't applied the Exhaustion Doctrine when you have a new -- when you create a copy of the original.
So it's -- it's not that we have law in place. We've been dealing with an item with the Exhaustion Doctrine and now we have hundreds of items, thousands of items, all growing from that original seed.

MR. WALTERS: The Exhaustion Doctrine, the policy that underlies this Court's cases is fundamentally a choice about the purchaser's rights in that personal property over the patentee's rights in the monopoly to use that monopoly and increase its sales. This Court has always chosen the purchaser's rights over the patentee's rights to increase sales. And we're just asking you to make the same choice here.

JUSTICE KAGAN: Well, except to the extent, as Justice Breyer suggested, except to the extent that the purchase is going to use the article just to create a new one of the exact same kind. And it seems to me that what you're suggesting is that the basic rule that says that the purchaser does not get to do that should have an exception for self-replicating technologies.

http://www.supremecourt.gov/oral_arg...oom=auto,0,792

Now if you want to claim they are now soybeans for food,rather than patented seed........

Justices Kennedy and Scalia even tried to discuss this farming point:

JUSTICE KENNEDY: I have only one question so far, and it's a farming question. With some crops if you are going to make seeds, you leave the crop in longer. In -- what about soybeans? If the farmer has the north 40 and the south 40, the north 40, he's going to plants soybeans to be used for flour, human consumption, and south 40, he wants seeds. Does he leave the plants in the ground the same amount of time?

MR. WALTERS: You know, most farmers are not growing soybeans for -- for seed. There are various types of -

JUSTICE KENNEDY: You would not? Okay.

MR. WALTERS: -- various types of farmers who are -- who are growing foundation seed, for example, that is very close to the -- to the first generation seed that's engineered.

JUSTICE SCALIA: I don't understand this. thought soybeans are seeds.

MR. WALTERS: They are.

JUSTICE KENNEDY: But that's -- if you're going to use the soybeans for seeds as opposed to flour, do you leave them in the ground any longer?

MR. WALTERS: I don't know the answer to that question.

http://www.supremecourt.gov/oral_arg...oom=auto,0,792

At the end of the day, it is an unresolved question in the law that's going to be resolved in a few months. And it seems like the Justices are leaning against the farmer in this case.

[JMS]

At the end of the day, it is an unresolved question in the law that's going to be resolved in a few months. And it seems like the Justices are leaning against the farmer in this case.

Yes because Monsanto has huge assets. If I purchase natural seed from TWA and that seed contains some Monsanto GMA... I can loose my entire crop. TWA isn't advertising GMA seed, nor can he restrict GMA seed which can naturally move across fields any given growing season from his inventory. I don't have to knowingly plant it. I don't have to be in an position to gain any financial benefit from having planted it. Even if you outlawed GMA today, It would be nearly impossible to eradicate it so ingrained is it in the seed already.

It is a nearly impossible hurdle for the farmers to get over.... Logically why couldn't a farmer who planted natural seed sue Monsanto if any of their crops got onto his farm and take all of their yearly profits!... I mean that's what's going on in reverse.

[twa]

he seems to be losing mainly since he kept some for new seed imo

there needs to be a fair use exemption in patent law,this presence of DNA line is problematic since you probably have Monsanto patented DNA in your body

[AsburySkinsFan]

Monsanto was always going to win with this court, justice is blinded by dollar signs and corporate earnings.