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Patents Science

Patented Seeds 70

rhh writes: "Seeds and plants grown from seeds are now patentable. Yesterday the US Supreme Court ruled that seeds and seed grown plants can be covered by patents. This is a major victory for companies such as DuPont, Monsanto and others that develop new crop varieties. In J.E.M. AG supply, Inc., DBA Farm Advantage, Inc., et al. v. Pioneer Hi-Bred International, Inc. farmers had sued saying that patents drove the price of seed up. A PDF of the Court's opinion can be found here."
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Patented Seeds

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  • So? (Score:2, Flamebait)

    by zpengo ( 99887 )
    If a company pours a ton of money into create a new type of plant, why shouldn't they be able to patent it? This article seems to be spinning this news as if it were absurd, but it actually makes as much sense as somebody patenting a new invention or copywriting something they wrote.
    • The concept of patenting a living thing just seems so entirely silly to me. It's totally counter to the order of things.

      If Monsanto wants to spend a billion dollars on a strain of corn that will yeild twice as much as a good old heirloom varieties, that's thier business (literally!). I'll even grant them the right to charge me $100/seed -- that's capitalism in its finest.

      However, the "pay-per-play" scheme for seeds is just silly. If I want to propogate a living thing, I should damn well be able to. (Note, I also think outlawing living things -- like weed -- is also absurd.)

      Got a garden in the Southwest? Support a heirloom line: http://www.nativeseeds.org

      • Re:So? (Score:3, Funny)

        by zpengo ( 99887 )
        Whether something is living or dead is irrelevant. If it is created by someone's effort, thought, and money, they have a right to patent it. Personally, I believe that parents should be able to patent their children, and children should be able to patent mud pies.
        • Re:So? (Score:2, Insightful)

          by Deagol ( 323173 )
          Let's take this to a to a logical extreme...

          Let's say that I was conceived in a lab -- a test tube baby, if you will -- and carried to term by my mother. In the creation of the viable egg that would become me, genetic alterations were made so that I would have abnormally hardy kidneys (assume my parents had a family history of kidney failure, and they wanted to assure their offspring wouldn't suffer the same proglem). They paid a bundle for the privilege -- gotta make sure XYZ Genetic Corp. gets their licencing fees.

          A little bit out there, but likely a possible scenario in my lifetime.

          Now... do you think XYZ Genetic Corp. has any right to prevent me from either having children or selling one of my super kidneys to the highest bidder?

          There's fundamentally no difference between me and a plant.

          • There's fundamentally no difference between me and a plant.
            Okay, dropping the obvious humor potential here in your comparison of yourself to a plant, you actually lead into a good point.

            Taking things to extremes is usually a very good way of dermining the logical conclusion of a philosophical argument, which is what you are addressing.

            However, in the practical world that we live in, these arguments do not necessarily apply. In every legal system I know of, there are substantial legal rights that are given to people that supercede anything that relates to plantlife. So it isn't a fair comparison, not even for the sake of taking the argument to its logical conclusion.

          • Re:So? (Score:2, Insightful)

            Now... do you think XYZ Genetic Corp. has any right to prevent me from either having children or selling one of my super kidneys to the highest bidder?

            There's fundamentally no difference between me and a plant.

            The law certainly recognizes the difference between plants and humans. It even recognizes the difference between animals and humans.

            For example, you can buy and sell most plants and most animals. But, in the US at least, it is not legal to buy and sell humans. You can forcibly breed plants and animals now, without genetic engineering, to get better strains. You can't do this with humans. We do all kinds of medical research on all levels of animals, but, again, this is illegal to do on humans.

            In general, the law has heretofore recognized a significant difference between humans and non-human life. There's no reason to expect this will be any different.

            Let me also point out, aside from any legal precendent, most people would disagree with your final statement in every sense. I see what you're saying, but in most Americans' worldview, there is a qualitative difference between humans and plants. Aside from a few radicals, almost everyone would disagree with your last statement on political, ethical and even spiritual grounds.

            I do not think we need to fear any scenario such as that you described. Or, let me amplify: we shouldn't fear corporations violating humans' rights simply because they can do it to plants.

          • It's plausible that they have that right, depending on what sort of paperwork your parents signed. If they purchased the rights to your physical characteristics, then you can sell whatever bits of yourself you please.
        • Your concept has some good logic included in it. If we allow the patent system to become so over burdened, it will have to be rebuilt from the ground up. Surely it can be done better the next time around :-)
          Now as to your logic on living or dead, there is a difference. Living things tend to replicate or reproduce in some manner. The replication or reproduction is hard to control outside of the laboratory (see my earlier post in this discussion about farmers that are neighbors). If the process can not be controlled, should the patent owner be allowed to control the "accidental" side-effects?
          If you can patent your children (I assume that you are referring to their genetic make-up), then you would have to license that patent to their spouse before they could reproduce? Wow now that is a cool way to control who is your son-in-law or daughter-in-law.
          • Software has a tendency to reproduce as well. When Microsoft sells a copy of Windows XP, they do it knowing full well that people are going to make copies of it to give to their friends. To say that a company that produces Super Seed XYZ has no rights to further (identical) seeds that are grown from it is the same as saying that Microsoft only has rights to that first CD, but that the copies are free-for-alls.
            • But that reproduction can be controlled. It requires a human to interven to reproduce the software. Now using my logic and your software analogy, you might not be able to patent a software virus or a software worm. They do replicate on their own once in the free.

              But then that would be another thing that might be good to get a patent on right now. You could then sue everyone who had the virus/worm on their system.

              However, that CD didn't copy itself, nor did it combine with RedHat Linux 7.2 to produce WinUx, LinDows, or any thing else on its own.
              • Children can't be created without human intervention, so the "parents patenting children" argument still stands as valid as the cd copying argument. As far as the seeds, it's generally the same thing. They are planted, sown, planted again, etc. Humans intervene.
      • by adoll ( 184191 ) <alex...doll@@@agdconsulting...ca> on Tuesday December 11, 2001 @02:30PM (#2688147) Homepage Journal
        Canada has already had a problem with exactly this sort of patent. The case involved a farmer who was "caught" with a special strain of Canola growing on his farm. Well, it was really only growing on a small part of his farm that happened to border a farm that regularly used this special high-priced seed. The farmer claimed that the seed or pollen blew over his field without his knowledge nor consent.

        Monsanto sued the farmer for "stealing" seed, he counter-sued Monsanto for "contaminating" his farm with GM canola. You can see a bit of the story here [tv.cbc.ca].

        The end result? The farmer lost and was fined C$19000.

        -AD

        • "Without his knowledge or consent" is not exactly true. The farmer knew, if you read the account. He also bragged about town that he was using Monsanto seeds without paying for them. Lots of people knew he was doing it evidently. That is how Monsanto got involved.

          Even if the seeds did blow onto his land without his help (which it appears is the case) then once he figures out what they are (for example, they do not die when doused with Roundup), he can't use them. If he does it unknowingly, he has a much better defense. Ideas that the pollen could spread throughout the world, making Monsanto rich off mandatory royalties from hapless victims are not realistic, though they can and do abuse their power just the same.

          I do agree that it is too easy for companies to strong arm farmers, but the answer is not to do away with GM or patents. Without patents, we would not have any of these seeds or this research. What shareholder would buy stock in a company that could not protect its investment?

          One last point, and I admit this is a bit nickpicky, but relevant, so please forgive: In a patent suit, you are not fined, the penalty is damages to the plaintiff, which have to have some basis in fact--what the seeds would have cost, etc. If the farmer was sued for $19,000, then that must have been the cost of the seeds or his take on the seeds. (Though there might be punitive damages if he KNEW he was infringing--whcih this guy appears to have known--not sure there.)

        • You can read pages and pages on the ill effects of this type of patenting in the most recent issues of SeedSaversExchange journals. This is like allowing MS to sue you if you accidnentally let any MS software on your non-MS pc ever. So no matter how pure/noble or whatever your intentions are you can get charged by MS for having that one little MS product on your pc. That's what has happened to farmers and the Supreme Court has just said fine.
    • The key to a patent is that you are the first to patent it -- not the first to discover it. Large companies like Monsanto have been trying to patent native, unaltered, unresearched varieties of local seeds in an attempt to create a revenue stream.

      In India, big American companies are claiming patents on local varieties of basmati rice so that local farmers will have to pay money for seeds they grew themselves, from strains that have existed for millenia.

      Patents aren't about new discoveries. They are about money. The first to "invent" something completely new deserves a patent. However, being the first to patent something that nature created does not deserve a patent.
      • Patents aren't about new discoveries. They are about money. The first to "invent" something completely new deserves a patent. However, being the first to patent something that nature created does not deserve a patent.

        You are right about what patents *should* be for. You'd think that the "prior art" and "non-obvious" restrictions on patents would prevent such absurdities from happening.

        "we've been growing that rice for 1000 years" = prior art!!!!

        Sigh, but basing anything on the assumption that the PTO has one damn lick of sense is not very realistic these days. I'm submitting my patent application for hydrogen hydroxide [armory.com].

    • Holy Shit! They finally figured out how to create living things? I thought they were just splicing things together at random to see what happens and going to third world countries and taking samples of what the native peoples spent thousands of years cultivating.

      In that case, by all means they should be able to patent their work.
  • by gi-tux ( 309771 ) on Tuesday December 11, 2001 @12:30PM (#2687391) Homepage
    This is really bad! What if I am a farmer planting my corn seed that has been handed down through my family, and some pesky little honey bee brings the pollen from my neighbors field to my field (assuming my neighbor is stupid enough to grow their patented trash). I am screwed, because I can't sell or use my corn anymore, it has been polluted by their patented garbage, but they have the right to call up their school of bottom feeding, scum sucking lawyers and sue me. My pure corn was polluted and they will win the case bacause they own a patent and lawyers. Sounds like another case of let's make sure that the lawyers stay employed to me. But what can we expect when we have lawyers making the laws, lawyers judging the laws, and laywers enforcing the laws.
    • I am screwed, because I can't sell or use my corn anymore, it has been polluted by their patented garbage, but they have the right to call up their school of bottom feeding, scum sucking lawyers and sue me.

      It's being done right now, as we speak.

      http://www.percyschmeiser.com/

      Read it and weep, as it were.
      • I actually got a chance to hear Percy speak a few weeks ago in DC.

        The conclusion I came to was that the government needs to start looking at the possiblities of this kind of genetic pollution.

        Percy had no choice about having the Monsanto plants on his property, it was Monsanto's(and his neighbor's) fault for not containing the pollen that polluted his crop.

        I say if you can patent a plant that it can pollute!
        • Percy had no choice about having the Monsanto plants on his property, it was Monsanto's(and his neighbor's) fault for not containing the pollen that polluted his crop.

          Percy knew in 1996 that some of his plants were from patented seeds. He harvested seeds from those plants and used them in one field in 1997. He used the seeds from that field to plant all his fields in 1998.

          He knew from the beginning that he was using patented seeds. Other farmers who knew they had reoundup resistant plants on their farms called Monsanto. Monsanto came and removed the seeds. At their own cost. Percy did not call Monsanto. He knowlingly planted and sold the patented material. I don't see the problem here.

          I need to stop reading about this. Some of the people here on slashdot need to start reading about it.

          Please mod this down so no one can read it.

          • Why is it Percy's responsibility to check his fields for Monsanto's so-called "property" and call them to remove it?

            I think it is Monsanto's job to insure that "their seeds" don't stray past whatever area they wish them to be planted in. And if those seeds do spread elsewhere then it is Monsanto's job to (a) apologize profusely to the farmer whose field is contaminated, (b) pay substantial compensation to the farmer whose field is contaminated, and (c) offer to remove the seeds from his field. However, if the farmer declines to have them exercise item (c) then tough bananas. If they can't control their seeds and someone else gets them in his field and wishes to keep them, so be it.

            In Percy's case, I have not heard Monsanto offering him any apology or compensation for their contamination of his crop. Which is wrong. Wrong. And also wrong.
            • In Percy's case, I have not heard Monsanto offering him any apology or compensation for their contamination of his crop. Which is wrong. Wrong. And also wrong.

              What exactly are Percy's damages based on? How did the seeds damage him? They did no damages. I am not really trying to argue that Monsanto is the good guy in this, or that patenting seeds doesn't present some problems. But I do think that Percy is not the best poster child for your side of the argument. Read the court opinion, it tells the facts of the case. If Percy had wanted the seeds removed, he could have called Monsanto. They have a hotline for just that purpose, and the opinion mentions that they have done exactly this (i.e., remove unwanted migrated patented seeds from other farmers fields who asked). Monsanto does this at their own cost, exactly as you suggested they do.

              Percy did not ask for this. He knowlingly harvested the seeds and patented them. Just because they were on his land does not mean he owns them, especially the patented part. That would be like claiming that because a patented airplane fell on my property, I now have the right to assemble and sell similar patented airplanes--hey, one fell on my property! It's mine now! This is ridiculous. Possession of the chattel itself does not give you a right to violate IP rights embodied in that chattel.

  • by eugene ts wong ( 231154 ) on Tuesday December 11, 2001 @12:41PM (#2687469) Homepage Journal
    It should be interesting to see how things will turn out for society as a whole.

    Imagine having a GPL-like ownership on a corn seed. If you were a truely benevolent organization, you could share your ideas with starving villages over seas.

    I guess that's no different than now, but in the future there may be more information available to encourage people to try out new breeding. It's similar to creating an OS. Right now there is more information available to more people, therefore it isn't as difficult as it once may have been to role out a new OS.

    I guess what I'm trying to say is that from an economic stand point, these patents will encourage companies to make better breeds of food. With more information, more people will begin to breed or genetically engineer their own seed. After that their ideas could be patented in a GPL-like way so that corporations couldn't control how the seed will be used.

    On the other hand, it's not as if the world is starving because of greedy corporations. Usually this comes about because of bad politics and bad economics.

    It is noteworthy to point out that having one's own patent for a seed, wouldn't really help much if you have trouble getting into these countries--whether it would be because of politics or health issues [such as malaria or whatever diseases are passed by mosquitos].

    To sum things up, I'm generally in favour of patents for seeds and such things.

    Sincerely, and with thanks,
    Eugene T.S. Wong
    • I have to agree. This can turn out really well for the rest of the world.

      As I see it, we are running into a bit of a problem (which is certainly not a novel viewpoint) in that we have a lot of people, and the number is growing quickly. What makes this problem somewhat worse is that both people and food are distributed asymmetrically, but in different ways.

      Ok, nothing new, too many people, not enough food. Everyone knows this. I think, though, the standard reaction to this is to be, essentially, very pessimistic, and takes the viewpoint "We're screwed". But I think that science can solve these problems. It's had a pretty good track record so far.

      And if there's one thing technology development has taught us, that's that if you make something profitable to implement, it will be implemented. Patenting foods is a good step in this direction. And I think we really need to hit this problem with new technology, because what else do we do?

    • I guess what I'm trying to say is that from an economic stand point, these patents will encourage companies to make better breeds of food. With more information, more people will begin to breed or genetically engineer their own seed. After that their ideas could be patented in a GPL-like way so that corporations couldn't control how the seed will be used. Unfortunately, this is exactly what the decision rules out. Under previous law, this was the case. GM plants had to be submitted to seed banks so researchers could examine, improve, modify, and reuse the kinds of developments that had been made. If they were different enough from the parent, they could even get protection for their plants, provided they submitted them to seed banks as well. What this ruling does however is make seeds subject to utility patents. These patents are exclusive, require no disclosure, and are very restrictive. Therefore, you dont get to see others work. You dont get enhanced knowledge. You dont get a starting point for more research. you get companies like Monsanto, Dow, and Pioneer-hibred forcing farmers to buy new seed. Every year. Forever. Not sharing with researchers. Patenting even more products.
      • This case does not change the law, the patent office has recognized plants as patentable subject matter since the mid 80's. All this case does is specify that the plant patent act adn plant variety protection act do not preclude patenting of plant life under the patent laws. Again, the pto had been allowing such patents for over a decade, so this case only establishes current practice more securely as law.

        I agree that the idea of requiring farmers to buy new patented seed every year sounds bad, but if the patented seeds are not that great, then why not just keep using the normal seeds? And if using the normal seeds is no longer ok (becuase the patented ones are so much better) then why gripe about the license? If we like the patented products, we need to pay for them so the Evil Ones like Monsanto will continue to create them.

  • by BrodyVess ( 455213 ) on Tuesday December 11, 2001 @01:13PM (#2687671)
    AAAAAAAHHHH! I had hoped this woulnd't happen. I just spent hours upon hours of my life writing a 12 page Constitutional Law paper over this very case, for this very reason.

    A little background-
    in 1930 congress said you could patent asexually reproducing plants with the Plant Patent Act.
    In 1978 this was extended to Bacteria with Chakarbarty v. Diamond, Chakarbarty patented bacteria that disolved oil.
    In 1970 Congress passes the Plant Variety Protection Act. This allows the patenting of sexually reproducing plants. However, some key provisions- Farmers can replant their seed, and companies have to release GM seed to seed banks for research.

    Here is the problem with the JEM case- it allows UTILITY patents, the same as on any invention, on Plants. Not only is this CONTRARY to the PVPA, but it gies companies 17 years of exclusive use. The dangers here- farmers cant replant seed. If you dont understand why this is dangerous, you aren't close enough to your agrarian root. Put down the palmpilot and talk to a farmer.
    The courts have overturned congressional intent. With todays "conservative" court this is becoming more of a danger. Some scholors would even go so far as to say that Rhenquist is more judicially active than Warren, just in the opposite political direction. Scary, aint it?

    This also has wide ranging Intelecutal Property implications. If you can patent plants, how about code? How about your genetic sequence? Can I patent my genes and sue someone that happens to have a very close sequence? If there's much response to this topic I'll post more indepth. like I said, I've got pages and pages sitting on my computer, and waaaaay too many hours invested in this case.
    • ...Farmers can replant their seed...

      An interesting aspect of this is that companies like Monsanto [monsanto.com] are putting "terminator genes" into their GM seeds which cause the next generation of the seed to be non-viable. This prevents farmers from growing from their own seed, effectively forcing them to buy new seed every year.

      It's easy to draw parallels between this and companies that prevent you from copying their media even though it would be legal under the Fair Use standard.

      It smells sneaky and devious to me, but I guess they have a right to do what they want with their own Intellectual Property. If you don't like the terms you don't have to buy it.

      • After digging around some I found some good links on "Terminator Genes". And a 1999 statement by Monsanto "making a public commitment not to commercialize sterile seed technologies". So I should revise my above statement to say companies similar to Monsanto, but supposedly not including Monsanto.

        Here are some links: http://www.ucsusa.org/Gene/w98.biobit.html
        http://www.victoryseeds.com/news/terminator_gene.h tml
        http://dhushara.tripod.com/book/genes/genaug/mar28 .htm
        http://dhushara.tripod.com/book/genes/genaug/term1 .htm#anchor1346545
        http://www.financialexpress.com/fe/daily/19990118/ 01855425.html
        http://www.law.harvard.edu/Academic_Affairs/course pages/tfisher/terminator.html
        http://www.biotech-info.net/monsanto_vows.html
        http://www.purefood.org/Patent/termgene.cfm

      • This prevents farmers from growing from their own seed, effectively forcing them to buy new seed every year.

        It ALSO prevents screaming protesters from claiming that the plant in question will escape from the farms and overrun all the native plants, which is supposedly the INTENDED purpose of the genes.

        Not to say that I don't think the executives at the companies in question love the 'rebuy the seeds every year' side effect...

        Then again, I don't recall ever hearing of seed companies sending armed thugs around to farmers hinting that they'd better not buy 'reproducible' seeds, either...

        • "Then again, I don't recall ever hearing of seed companies sending armed thugs around to farmers hinting that they'd better not buy 'reproducible' seeds, either..."

          Exactly. We are all bitching about "having" to buy seeds every year, but that is only if you want the genetically modified seeds! You are free to continue planting your old seeds as long as you like.

    • Here is the problem with the JEM case- it allows UTILITY patents, the same as on any invention, on Plants. Not only is this CONTRARY to the PVPA, but it gies companies 17 years of exclusive use. The dangers here- farmers cant replant seed. If you dont understand why this is dangerous, you aren't close enough to your agrarian root.

      True, this case allows utility patents on plants, a practice that has been going on for over a decade. This case just specifies that the practice is OK.

      As far as the dangers of not being able to replant, nothing is preventing the farmers from replanting unmodified seeds. Farmers can still do business exactly as they did before, just not with GM patented seeds for which they sign an agreement that they won't replant. Not to be cynical, but if they don't want to agree to this, they shouldn't buy the seeds. And if the seeds are so great that they must buy them, then such an agreement doesn't sound so bad--since the farmers are getting such great seeds. That, and the fact that if we want such seeds, we absolutely must allow companies who develop them to reap profit. They can't do this if farmers replant.

      As far as this being CONTRARY to the PVPA, the court specifically ruled that this is NOT CONTRARY to the PVPA. The PVPA has lower thresholds for protection, and offers less protection. Patent law has stricter standards, and offers better protection. Nothing in the patent laws nor the PVPA nor the PPA says you can't patent plants. (Or so sayeth the Platonic Nine--or Eight, since O'Conner didn't participate.)

      You also say the court overturned congressional intent. They address that too. Congress has known about patenting of plants for over a decade, they have made vast changes to parts of the patent code during that time. But they have never suggested that you should not be able to plant patents, and they have had ample chance. According to the court in their opinion.

      As far as patenting gene sequences, I have envisioned a world in the future where you take out a license on a genetic trait--blue eyes, for example. You take an inhaler or injection that modifies your genes, modifies them by a patented process. You sign a license when you do this that says every year you will pay $100 to keep your blue eyes. If you don't, you infringe.

      Now, the person with natural blue eyes, he would obviously not infringe. He did not use the innovative patented process for changing eye color genes. And since his eye color OCCURS NATURALLY, no one can patent it. No one. Except GOd, because he invented it.

      • I think you are overlooking several points here.

        As far as the dangers of not being able to replant, nothing is preventing the farmers from replanting unmodified seeds.

        True, but do consider that unmodified seeds lack resistances against many plagues/diseases and thus the crop yield will drop. Third world countries which already have a shortage of food will suffer from this, there export even more, further worsening their economical position in the world.
        The same goes for the following:
        Not to be cynical, but if they don't want to agree to this, they shouldn't buy the seeds.


        Then you argue:
        And if the seeds are so great that they must buy them, then such an agreement doesn't sound so bad--since the farmers are getting such great seeds.

        but this leads us to the financing problem: who will pay for the expensive seeds? Not the customers (you and me) because Walmart can't afford to raise the prices to their customers while they can simply tell their suppliers that they won't be paying more. Third world countries aren't really in the position to make any demands.

        With the following you do have a point:

        That, and the fact that if we want such seeds, we absolutely must allow companies who develop them to reap profit. They can't do this if farmers replant.


        This is closely related to the discussion regarding the cheap preventive AIDS medicine that South Africa is distributing. One might even relate it to the gaming industry. Naturally these companies wish to make profit, the question is if it is reasonable to let them make profit over the backs of many people.

        Perhaps government oriented research would be an option, but who wants to work for the government these days? No-one, because the big bucks are earned with selling commercially sound ideas to the rich; so we tend to forget about the poor, and that might not really be nice during christmas and the rest of the year.
  • Is it just me, or does law seem to get screwier and screwier? From trying to regulate internet sites (too many slashdot links to provide), or RIAA/MPAA copyright lawsuits (links? ditto), and now we'll have unenforcable patent laws on the books.

    Really. You can control the production of (say, for example) a car, but you can't control the replication of a gene sequence very well.
    Sprinkle with a company patenting a pre-existing gene (anyone want to apply on a patent for hemoglobin production?), and we have a recipe for disaster.

    Anyone know where I can buy a sizable island cheap?
    • I don't think you can patent a pre-existing gene. The patent law only allows patenting of new ideas. Things existing in nature are not patentable.

      I believe that the patents for genetics are usually for innovative ways to isolate or identify genes, or ways to modify them. If I come up with a way to make someone's eyes turn from brown to blue, I can patent that process, and sue anyone who uses it to change their eye color. However, I can NOT use it to make anyone with naturally blue eyes pay me. Get the difference?

      • A pharmaceutical company [can't remember which] has a patent for the gene that causes breast cancer. In other words, if you want to know, if YOU have breast cancer (or testicular cancer, which I believe are caused by the same gene) in YOUR OWN BODY, you (your doctor) have to pay the company money (I think it's ~1,900 UD$) to get the dna-screening. Not because that's what it costs, but because that specific gene is patented.

        This was covered on 60 Minutes some time ago.
        • I am not familiar with that 60 minutes episode. But are you sure that the reason you would have to pay the company is not because the only way to detect that gene is with a patented method? I am not a genetic scientist of any kind, but I think that detection of particular gene sequences is largely new art, and when people find a way to isolate/detect a particular gene sequence, they can patent that method of finding the gene. I am positive that you can't patent things existing in nature, and a breast cancer gene definitely exists in nature.

          Like I said, not a biologist, but I would like to see a cite on that 60 minutes article.

          • I think the episode said something to the extent of:
            "If I want to look for the breast cancer gene in MY body, I have to pay THEM money, no matter how I look for it."
            • I disagree with the "no matter how I look for it" part, because the company only had patented the method for finding teh gene, they did not have a patent on the naturally existing gene. No one can (legally) patent the naturally occurring gene.

              If the episode said what you assert, the episode was misleading. Now I can see them thinking that, because the patented method is the only way to screen for the gene, then no matter what you have to pay the company to get the screening. This is true, but if so, then there is NO OTHER WAY to screen for the gene. In this case, why shouldn't the company get paid? You don't want them to develop gene screening techniques? Without the company, the person would not have been able to screen for the gene at all. They would be feeling for lumps instead.

              I personally am willing to pay a royalty to have these methods available. The alternative is no research (or greatly retarded research) in this area.

        • Go here [ornl.gov] to get some info on gene patenting. From that site:

          Gene Tests
          As disease genes are found, complementary gene tests are developed to screen for the gene in humans who suspect they may be at risk for developing the disease. These tests are usually patented and licensed by the owners of the disease gene patent. Royalties are due the patent holder each time the tests are administered, and only licensed entities can conduct the tests.

          I bet this was what the 60 minutes episode was about. They patent the detection test, not the naturally occurring gene.

          I do agree that there are problems with gene patenting, but it is not the issue most in the public think it is. They think companies are patenting the genes in their body (probably from watching misleading 60 minutes episodes ;). The companies are actually patenting related technology (tests, identification methods, etc.), which may be just as important money-wise, but which is not quite as offensive.

  • Just a thought (Score:2, Informative)

    by MadCamel ( 193459 )
    This brings to mind somthing I saw on the news quite a while ago. Two farms were directly neighboring eachother, one farm grew geneticly altered designer crops, that were easily identifiable as such by color, Farmer2 grew normal crops. Well, it seems that Farmer1 let seeds (from grown and mature plants) drift/blow/migrate in to Farmer2's field. The company that designed the plants(so to speak) demanded Farmer2 pay royalties to them for using their stock! I don't remember if he had to or not, but now I'm sure he would be required to do so by law. Life spreads, unless they can make these patented seeds unable to reproduce, they will eventualy end up growing anywhere they can, with the property owner paying.
    • Re:Just a thought (Score:2, Insightful)

      by gi-tux ( 309771 )
      Or as I remember from childhood, in our gardens sometimes plants would come up from seed left over from the previous year. If I buy their seed this year and someone elses patented seed next year, and then the two patented plants cross-pollenate, who owns the "new" variety? Obviously I don't want to own it as that would infringe upon both of the other patents and I don't want to have to fight their lawyers.

      I realize that a lot of genetically altered seed or hybrid seed are sterile, but they do have to be able to reproduce one time in order for them to be of any value to the farmers (in most cases) as it is the seed that is usually the desired crop in some form.

      I don't have a problem with companies producing seed that produce sterile off-spring, but if they plan to patent and enforce the patent seed, this is a different proposal. By producing hybrid seed, they ensure that they can line their pockets (which is their right in a free market economy such as ours), but they do not endanger the freedom of others to make a living. A patent will allow them to make money off of accidental cross-pollenation that can't be controlled. And this is most likely to happen to small farmers that can't afford to defend themselves.

      If this flys for a little while, I am going to patent some version of the dandilion. Those things reproduce like crazy and there is no way in this world to control them from spreading everywhere. I will be able to sue everyone for growing my patented flower and live like no king ever dreamed for the rest of my life.
      • If patented seeds spring up on someone's property unintended, it is not established that they would have to pay the company anything. I would think that the farmer would have a claim of some kind of trespass for one thing--the company's property has trespassed on the farmer's land, and the company's property (the patented seeds) is even readily identifiable!

        The only cases I have read where someone got into trouble for using patented seeds they did not buy (but which grew on their land), the farmer was aware that he was using patented seeds, even though he got them from unintended invasion of his land. When the farmer knows he is using patented seeds, he doesn't have much of a defense against patent infringement.

        I have not seen any cases where a company discovered, unbeknownst to a farmer, that the farmer was using patented seeds and sued the farmer. That will be an interesting case in this area. I hope the farmer gets a good lawyer, because such a case could make some long lasting law. There would be powerful public policy reasons for the farmer to win--letting a corporation sue for patent infringement in such a case would provide incentive for companies to create invasive species of seeds, so that the seeds patented genetic trait would invade as many farms as possible. This could not be sustained. It would be intentional tresspass. Farmers could point to tangible economic damages from such seeds, like the cost of policing the farm against them, removing them. Such costs could be the basis of a suit against a compnay that created and released such seeds.

        Until I see a case where companies are farmers who unknowingly use patented seeds, I won't be too upset by all this.

    • The real danger in this is that companies are designing plants that are only able to reproduce a limited number of times. After that you have to buy new seeds, thus insuring continuing profits for the companies that own the rights to them. As they breed they could lock other farmers into the cycle.
      • The real danger in this is that companies are designing plants that are only able to reproduce a limited number of times.

        Nonsense. Almost all non-genengineered seeds sold to farmers today are hybrids that do not breed true. The fact is that farmers not been growing their own seeds for many, many years.

        There is actually a substantial safety factor to self-extinguishing gencrops - by tying genetic mods to new genes you are less likely to get unexpected propagation of foreign genes in the wild.
  • It's funny how humans think that they can just come along millions of years later and copyright something they didn't even invent. That's like me mixing red paint and blue paint together, calling it "purple" and patenting it. I didn't even invent either of the source colors.

    So we can just come along, rearrange the bits that were already there and call it new? I might be more amenable to accepting this news if the companies in question had actually invented the gene in the first place, but I think someone or something else already has prior art on that one.

    Oh yeah, and Monsanto's really a quality organization, to boot:

    http://www.google.com/search?q=monsanto+complaints [google.com]
    • That's like me mixing red paint and blue paint together, calling it "purple" and patenting it.

      Ironically, in a story rejected by Slashdot months ago, patenting of Beans that happen to be yellow [biotech-info.net] has already been allowed by our friends at the USPTO.

      In this case, the patent holder didn't even do any engineering - he just picked out some yellow beans from a bunch he brought over from mexico and grew them until he consistently got yellow ones. (The 'Enola Bean', as he calls them).

      'Biopiracy' indeed...

      • First, I'd like to point out that if no one had ever added red and blue together, then the guy who does it first should get a patent. If he hadn't done it, we wouldn't have purple.

        The case about the yellow beans is indeed disturbing. But if you read the article, it looks like a comment on the quality of examination in the PTO, rather than a statement on the quality of the patent system in general. If these beans indeed exist in nature, then the first time the patent owner tries to enforce the patent, the defendant will have a chance to argue the patent is invalid. And it sounds like, in this case, the defendant would have a good argument. That too is part of the patent ssytem--patents are not inassailable, and bad patents may be relatively easy to invalidate.

  • This is getting extra scary. Whose fault will it be if "patented" seeds get mixed with regular seeds and a farmer accidentally grows them? Will he be sued for selling the crop?

    What if a company produces a patented plant that is not sterile and grows like a weed. Will you be required to get rid of it whenever you find it growing on your property? If it grows on your property, will you be banned from eating it or selling it?

    Think that is too ridiculous to happen? Think again.

    I wonder if licensing agreements printed on menus and cereal boxes are just around the corner.
    • Will he be sued for selling the crop?

      Yes he will indeed be sued. It's happening right now. See this link: http://www.percyschmeiser.com/

      And this one: http://nelsonfarm.net/
      • Will he be sued for selling the crop? Yes he will indeed be sued. It's happening right now. See this link: http://www.percyschmeiser.com/ Your answer is either wrong or misleading. Go read the court opinion you cited for us. The defendant (the farmer) found some seed in 1996 that survived roundup spraying. He knew it was patented at that time. He harvested those seeds and used them to create his 1997 crop in one field. That field's seeds he harvested again, and used those seeds to plant every one of his fields in 1998. The 1998 use of patented seeds were the ones he was sued for.

        At other parts of the court's opinion, the judge mentions that other farmers who had found patented plants on their property did not act as Schmeiser did. Schmeiser harvested the seeds, mixed them, and replanted--two consecutive years and in such a way that every field he had the second year had something like 50% to 70% patented plants--depending on which side you believe. The farmer knowlingly selected those seeds. Monsanto claims they found out about him becasue he was bragging around town about the fact that he was using patented seeds without paying for them.

        The other people who had found such plants volunteering on their land told Monsanto about it. Monsanto came and removed the plants at their own expense.

        So farmers who had seed blown into their fields (which has happened) were *not* sued. Monsanto themselves paid to remove the offending plants. The only farmer that was sued was the one who harvested the seeds for a few years and eventually was planting his whole crop with the patented seeds. Knowingly.

        I can see how this case is a great one to get people riled up against patents and big companies. But both sides of this issue will be happy to skew the facts in their favor.

        I can also see that, regardless of how badly this farmer acted, this kind of thing does raise some serious questions about patenting seeds. For example, was Monsanto *required* to remove their seeds from farms that they migrate to? They did not sue, they acted in good faith and removed the plants at the farmers' rquests. But did they have to? Not sure there. Such practice may be necessary for them to continue to enforce their patent claims. Then again, it may not be. Not sure.

        Finally, this was canadian court. Not that that is bad or anything, just not US law we are talking about here.

        • I see nothing wrong with what Percy did here. If Monsanto's seeds contaminated Percy's crop, why is it up to Percy to call Monsanto or do anything other than, perhaps, to demand substantial compensation from them for contaminating his crop?

          If the seeds are on his property and he wishes to keep them, then I think he has every right to do so.

          He did not steal Monsanto's seeds.
  • What is grown in the earth, watered by rain and nurtured by our sun is given by the earth. I'll pay the person who collects it but I'm sad to see other people get involved.

    This is wealth that bankrupts us all.

    Bo
  • The initial response to patents is always negative. But if you think about it, the supreme court did the right thing. Patents were designed to give people incentive to innovate, and this is a valid situation.

    The patents, of course, last too long, but that's congress' fault. If you don't like it, then write to your congressmen/women.
  • This post reminds of case between India & Pakistan and
    the US-based Rice Tec company

    Apparently Rice Tec was granted patents for 'Basmati Rice' - a fragrant variant of rice that had grown for centuries in central Indian Himalayan foothills and some parts of Pakistan.
    As expected, they couldn't defend their patent claim in court.

    Agricultural patents are a sensitive area because it effects a lot of third world enconomies.

    I am not against patenting seeds, but a clear yardstick should be applied for verifying claims before granting patent registration. And considering the track record of US patent office this is not happening.
    • I am not against patenting seeds, but a clear yardstick should be applied for verifying claims before granting patent registration. And considering the track record of US patent office this is not happening.

      I agree. Write your congressman and tell them to let the patent office keep the money they earn from fees, rather than siphoning that money away to other areas. When you strangle the PTO, you get a weak patent system. It ain't their fault. Last year the gubbament once again decided this appropriation of the PTO's fee earnings was acceptable. Write your congressman. I did. (And got back the standard "I too share your concern on X..." letter--about as satisfying as a vacant stare. Thanks Kay Bailey Hutchinson.)

  • Yep. This is how you know when the government and law systems in the united states have gone beserk.

    I think I'll file for a patent on my first born child.

I have hardly ever known a mathematician who was capable of reasoning. -- Plato

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