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."
So? (Score:2, Flamebait)
Re:So? (Score:1)
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)
Re:So? (Score:2, Insightful)
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.
The fundamental difference between you and a plant (Score:1)
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)
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.
Re:So? (Score:2)
Re:So? (Score:1)
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.
Re:So? (Score:2)
Re:So? (Score:1)
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.
Re:So? (Score:2)
Monsanto and "Round-up Ready Canola" (Score:4, Interesting)
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
Re:Monsanto and "Round-up Ready Canola" (Score:1)
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.)
Re:Monsanto and "Round-up Ready Canola" (Score:1)
It's not "pouring tons of money" (Score:3, Insightful)
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.
Re:It's not "pouring tons of money" (Score:2)
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].
Re:So? (Score:1)
In that case, by all means they should be able to patent their work.
Great, now we can't eat either (Score:4, Interesting)
Re:Great, now we can't eat either (Score:3, Interesting)
It's being done right now, as we speak.
http://www.percyschmeiser.com/
Read it and weep, as it were.
Re:Great, now we can't eat either (Score:1)
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!
Re:Great, now we can't eat either (Score:1)
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.
Re:Great, now we can't eat either (Score:1)
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.
Re:Great, now we can't eat either (Score:1)
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.
How far will this go? (Score:4, Interesting)
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
Re:How far will this go? (Score:1)
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?
Re:How far will this go? (Score:2, Interesting)
Re:How far will this go? (Score:1)
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.
Constitutional Law pays off (Score:5, Informative)
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.
My paper (Score:3, Informative)
Background
Pioneer Hi-Bred International is the largest producer of seed corn in the world, and as such holds 17 patents for sexually reproducing corn plants. The patents that Pioneer holds have been granted under Section 101 of the Patent and Trademark Act, which governs the patent process for most patentable discoveries. This law, known as a utility patent, is general, allowing the holder to place restrictions on the use of their discoveries. Pioneer Hi-Bred distributed a genetically modified and patented form of corn to J.E.M. Agricultural with the condition that it be used only to produce "'grain and/or forage'". J.E.M. Ag then repackaged and resold the seed corn, in violation of the terms of sale by patent conditions. Pioneer Hi-Bred responded by filing suit for patent infringement.
J.E.M. countered with the claim that the patents granted to Pioneer are invalid. They base this claim on the contention that corn, a sexually reproducing plant, is not subject to patent under 35 USCS 101. This statute states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Sections 102 and 103 exclude any law of nature or living organism from this protection. Justice White explains "The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute [ 101] was enacted to protect." J.E.M claims that since the patents Pioneer holds are inadmissible by federal statue, they are void, and they lack standing to sue.
Court Decisions
The decision in Chakrabarty seemingly prevents any application of the Flook decision limiting the expansion of patent protection. Pioneer argues that the court is to use its ability to interpret law created by Congress in order to grant patent protection for a category not included in any legislative history of patents. Their reasoning is parroted out of Chakrabarty - "It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803)." The respondent would have this court find ambiguity in the application of 101 in order to interpret the statute so as to extend utility patent protection. This cannot be done in all good conscience, as it requires a vast over use of the courts power of legislative review. The abilities granted by the Marbury case are too important to wield as a sword to be used to create a legal fiction convenient to the courts political views.
Further discussion will reveal why the logic presented in Chakrabarty does not hold in this case. Throughout the interpretation of this case it is important to keep in mind the separation of powers. In every case ask- "Is this the domain of the courts or the legislation?" The overwhelming answer is legislation. This court considers the issue only to rectify the damage that has been done in lower courts, and to restore the meaning that Congress spelled out when they passed the legislation pertinent to this case. An examination of that legislation will reveal why this court does not accept the reasoning presented by Pioneer.
Law
There have been a number of efforts to deal with the emerging field of genetic engineering and manipulation in plants as it relates to patent protection. The legislative history has developed slowly, following the development of science to both produce and identify the kinds of living materials that are eligible for protection, and what those protections might be. It has only been recently that the judicial system has overstepped its bounds to decide, by thinly veiled allusions to revered precedent, what Congress must have meant. A close examination shows that Congress has never intended to extend utility patent protection to sexually reproducing plants. No explicit legislative evidence exists to substantiate this position
Until 1930 it was explicitly understood that creations of living plants were inherently excluded from edibility for patents. During that year Congress passed the Plant Patent Act, which incorporated asexually reproducing plants into the precursor of the current U.S. Patent law- title 35. The PPA was a direct modification of the current statue, reducing the requirement for description, but only applying it to asexually reproduced plants that could be reliably reproduced. This direct modification is important when considering the way that future changes were made.
Then next change to patent law came in 1952 when Congress re-enacted the Patent Act. Among the changes was the replacement of the word "art" with "process". This enactment also codified the changes from 1930 into the new section into 101. This change affirmed the belief or Congress that asexually reproducing plants were subject to utility patents. Once again, this was a direct, codified change to the actual patent act as it pertained to plants. The restrictions on identification were loosened to the point that they were met with a color photograph. Besides these kinds of technical changes, the general requirements such as novelty and man-made construction were retained. Plants patented under this act were also protected like other patents. This is most certainly not the case with the PVPA protecting sexually reproduced plants.
The last change occurred in 1970, and dealt with providing protection to sexually reproducing plants. However, Congress approached the protection of plants in the Plant Variety Protection Act differently. The PVPA did not extend utility patents to sexually reproducing plants, but rather provided them protection with some key stipulations- the ability for farmers to keep seed year to year, and the requirement of submitting samples to seed banks. The PVPA was incorporated as a separate statue, not codified as part of Title 35, Section 101. By this difference it is evident that Congress did not consider the PVPA to be directly equivalent to the PPA. This is however, what Pioneer asks, and what the lower courts have ruled. The differences in the statues demand that they not be considered as equals. Therefore, the Chakrabarty ruling, granting utility patents to asexually reproducing plants fails to influence this court that sexually reproducing plants should be treated in the same way.
Chakrabarty asks that the court interpret Congressional meaning in patent law when ambiguity appears. The question of patent protection for plants has been decided on three times in the last 72 years. For an issue of rather fine political and constitutional importance this is an enormous body of legislative action. Congress has systematically applied greater and greater protection to those that develop variations on living matter. Protection for living matter began with the PPA's application to asexually reproduced plants and has most recently been extended to sexually reduced plants by the PVPA. In none of these three actions has Congress granted utility patent protection for sexually reproducing plants.
Instead, they have established an entirely different protection scheme, complete with its own certification process, rights for holders, and rights for the general public and researchers. This must be taken as a clear signal for what protections Congress wished to grant sexually reproducing plants. In light of these decisions it would be a severe usurpation of Congressional power if this court were to decide that Congress had intended to protect sexually reproducing plants with utility patents. However, this is exactly what Pioneer asks for.
Pioneer Hi-Bred cites the fact that the Court of Customs and Patent Appeals has ruled in their favor to grant the patent as judicial precedent for this court to follow. It is important to note that Parker v. Flook was a reversal of a Court of Customs and Patent Appeals decision, and that decision set up the affirmance of an appeal in Diamond v. Chakrabarty. The court holds little precedent judicially as it is primarily an administrative body. This court finds little reason to believe that the Patent Court acted in accordance with the desires exhibited by Congress through the 1970 PVPA.
Natural Law Exemption
The Chakrabarty case only bears a surface resemblance to the case that has been presented here before the court. At issue was a similar topic, whether or not the patent office could grant a utility patent for a living organism, but the granting of that patent relied on a very different premise than is present here. In Chakrabarty the court allowed the patent not solely because of the PPA, but because the patent application clearly met standards already in place and the PPA. At issue was the creation of a "novel" organism. Much like the development of a new machine the bacteria that Chakrabarty patented had properties that no other patented product had. The fact that it reproduced asexually allowed it to be granted a utility patent under the PPA. Pioneer's claims do not meet either requirement. The PPA explicitly grants utility patent protection for asexually reproducing plants only. The PVPA allows a measure of protection for sexually reproducing plants, but not under utility patent law.
As importantly, the patents filed by Pioneer Hi-Bred would not meet legislative requirements even if the PPA applied to sexually reproduced seeds. In the Chakrabarty case, the bacteria did something that no bacteria had ever done through natural mutation- they dissolved oil spills. Pioneer makes no such claim here. Their corn does not clean up toxic waste, revolutionize transportation, or do quantum mechanics. It is simply corn. Granted, the corn has improvements, but the improvements are such that they are simply extensions of natural properties of corn.
In order for an invention to be patented it must "have never occurred in nature." This requirement was part of the original 1793 patent act, and has remained unchanged through all modifications. The reason for this is simple- if patents are granted on natural processes, a single patent could corner an entire area of invention. A patent on convection could greatly affect cooking, incubation, heating, and many industrial processes. Likewise, a discovery from nature belongs to the public in trust, to experiment on, develop from, and create unique products and processes. The accelerated evolution of a sexually reproducing plant to exaggerate natural traits does not meet this criteria. Once again, the case presented by Pioneer fails to meet any test set up by either the Supreme Court of the Congress.
Without a definitive man made modification there are several recourses that Pioneer may pursue. They may obtain utility patents on a manner for the actual process of modifying corn, or raising the seed once it has been produced. However, they may not obtain a utility patent on the corn itself. Therefore, they must find alternative methods for protecting the integrity and rights to the specific breeds of corn that they produce.
Restrictions versus Alternative Methods
At the center of this debate is the question of whether the presence of the PVAP and the PPA exclude the possibility of utility patent protection. The lower courts found compelling evidence that the Radzanower test had been met. When two statutes cover the same ground, if they are found to be capable of co-existing, the court is to hold both as effective. However, this court finds that the lower court was mistaken in one area- the PVPA and the application of utility patents to plants are not capable of coexisting. This is not because the letter of the law is mutually exclusive, but because the PVPA makes clear what protection that Congress wished to extend to plants.
When Pioneer applied for a utility patent to protect their corn derivatives, they also applied for protection under the PVPA. There has been much debate about the legitimacy of doing this. The question presented is whether or not the PVPA is the sole means of protection for sexually reproducing plants. This court contends that the history surrounding the creation of the PVPA makes it the sole protection for sexually reproducing plants, and that the utility patents law cannot be construed to encompass additional protection outside the PVPA.
The legislative history shows ample cause for rejecting this argument. In 1930 the PPA was created as a direct change to the Patent Act, and included in the 1952 re-codification. This provides evidence to suggest that Congress intended the PPA to extend the utility patents in a new direction- the ability to patent asexually reproducing organisms. Under this specific setup, the protection from both clauses is effective and capable of coexisting. Not only are they complimentary legally, but also in the reason and form of their creation. The Radzanower test has been met since both can co-exist, and so it is the courts ruling that a patent may be held under utility patents as well as the PPA, because they are in fact, one and the same. This is not the case with the PVPA.
The PVPA was enacted in 1970 not as an extension, amendment, or re-enactment of the Patent Act, but rather a separate statute. Whereas the PPA relaxed the restrictions on utility patents in order to protect asexually reproduced plants, the PVPA gave entirely different protection, outside the scope of utility patents. This difference is important to consider when reasoning the kinds of protection that Congress intended. The PVPA and utility patents do not conflict in their statutory language. Both offer rights to those seeking a patent on plant material, and the rights do not conflict. However, they fail the Radzanower test for co-existence when the philosophy of each is considered. Utility Patents are granted to discovers of man-made processes, methods, and objects. The case that the respondent relies so heavily on, Diamond v. Chakrabarty (1980), is a prime example of the differences in sexually and asexually reproduced organisms in the eyes of Congress, as relating to patents.
Other Considerations
This court has been presented with a unique and delicate opportunity in deciding this case. With the current development of intellectual property laws much more is at stake than the declaration of this one case, or even the disposition of patents in the agricultural world. A dangerous precedent would be set if the judicial system, either federal courts or the United States patent court, were allowed to expand or contract patent requirements and benefits, a subject constitutionally delegated to Congress.
The constitution specifically delegates to Congress the power to "promote the useful arts and sciences" through the granting of patents. This clause holds two very important Constitutional considerations. The first is an issue of separation of powers, and the second is a question of how to best promote the public good. Because of the importance of intellectual property in today's world, a cautious line must be taken. If this court were to begin the business of establishing patent law it would have an extremely negative impact on the effectiveness and fairness of the patent process, as well as undermine the legitimate power of the court.
Therefore, we must leave the power of establishing patent law with those to whom the founders granted it- the Congress. Through the establishment of the PVPA and PPA the Congress has made its intention known. The granting of utility patents to asexually reproducing plants under the PPA is legitimate, but the differences in the establishment of the PVPA make it clear that those same protections do not apply. Instead, Congressional intent was to limit the kinds of protections available. Not only this, but the PVPA carries some key responsibilities for those applying, and rights for the purchasers of seed that are not present in utility patents. If Congress has seen fit to make these conditions part of the protection process for sexually reproducing plants the court has no right or power to overrule them.
If the court were to rule in favor of Pioneer Hi-Bred we would be creating protection where none exists. Pioneer has sought a shortcut to legislation by redress from the court system. A ruling in their favor would substantially change Congressional legislation in such a way as to give seed companies the right to hide their modifications of plants from all other researchers, and deny farmers rights which they retain under the PVPA. More specifically, the nation's farmers would no longer be allowed to keep seed from one year to the next. This not only has the potential to destabilize American agriculture, but is also contrary to Congressional intent.
Intellectual property is an especially sensitive issue. The power to patent is the power to modify the entire development of an industry. Some analysts have suggested that the permissive licensing of patents from IBM is responsible for the growth of the home computer market toward the PC and away from Apple. Such is the power in patents. If the courts are allowed to modify patent law at a judicial or administrative level, rather than a legislative level, the effects on development could be staggering. Patents on seeds could drive some farmers out of business with burdensome seed prices and damage the economy, or they could promote one seed company so heavily over another that the power of patents would allow a monopoly to form. In either even, those who wish to research modified corn deserve the protection of the PVPA so that better strains of corn may be developed. Congress has decided that seed banks are the best way to promote the useful arts and sciences, and that is their constitutional duty.
Conclusion
This court cannot stand idly by while other judicial bodies assume legislative functions. While the constitution has granted the courts powers to interpret laws, they cannot create laws where none existed, or wipe out existing laws. By ruling that Pioneer Hi-Bred could patent corn, that is what the Court of Customs and Patent Appeals has done.
This is a dangerous precedent to let stand. Not only does it corrupt the original intent of the law, but also denies farmers and researchers the rights that Congress has seen fit to protect. Repeated abuse of these judicial powers to create laws is extraordinarily detrimental to the justice system as well. If patent law decisions were made by the courts instead of Congress it would begin a slippery slope that stands in direct conflict with our constitution, and the principles of representative democracy.
The court sees this case as a place to draw a line in the sand. The responsibility and right of Congress to regulate the granting of patents has systematically been stretched by court decisions that opened new areas of patent protection. It is, however, very clear that Congressional intent cannot be stretched to include the granting of utility patents to sexually reproducing plants.
This court finds that the extension of utility patents to those products of nature which are not specifically enumerated in USCS Title 35 have not been granted protection by Congress. Therefore, the appellate ruling in J.E.M. Agricultural v. Pioneer Hi-Bred is overturned.
Re:Constitutional Law pays off (Score:2)
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.
Re:Constitutional Law pays off (Score:2)
Here are some links: http://www.ucsusa.org/Gene/w98.biobit.htmlh tml
8 .htm
1 .htm#anchor1346545
/ 01855425.html
e pages/tfisher/terminator.html
http://www.victoryseeds.com/news/terminator_gene.
http://dhushara.tripod.com/book/genes/genaug/mar2
http://dhushara.tripod.com/book/genes/genaug/term
http://www.financialexpress.com/fe/daily/19990118
http://www.law.harvard.edu/Academic_Affairs/cours
http://www.biotech-info.net/monsanto_vows.html
http://www.purefood.org/Patent/termgene.cfm
The 'terminator' genes (Score:3, Insightful)
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...
Re:The 'terminator' genes (Score:1)
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.
Re:Constitutional Law pays off (Score:3, Insightful)
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.
Third world countries and other poor farmers (Score:1)
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:
Then you argue:
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:
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.
Not again (Score:1)
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?
Re:Not again (Score:1)
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?
Actually ... (Score:1)
This was covered on 60 Minutes some time ago.
Re:Actually ... (Score:1)
Like I said, not a biologist, but I would like to see a cite on that 60 minutes article.
Re:Actually ... (Score:1)
"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."
Re:Actually ... (Score:1)
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.
Re:Actually ... (Score:1)
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)
Re:Just a thought (Score:2, Insightful)
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.
Re:Just a thought (Score:1)
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.
Re:Just a thought (Score:1)
Re:Just a thought (Score:3, Interesting)
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.
Funny... (Score:1)
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+complaint
Re:Funny... (Score:2)
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...
Re:Funny... (Score:1)
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.
Royalties until you take a dump? (Score:2)
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.
Re:Royalties until you take a dump? (Score:2, Informative)
Yes he will indeed be sued. It's happening right now. See this link: http://www.percyschmeiser.com/
And this one: http://nelsonfarm.net/
Re:Royalties until you take a dump? (Score:1)
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.
Re:Royalties until you take a dump? (Score:1)
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.
Spiritual Objection (Score:2, Insightful)
This is wealth that bankrupts us all.
Bo
Not bad (Score:1)
The patents, of course, last too long, but that's congress' fault. If you don't like it, then write to your congressmen/women.
Patent procedures must improve first (Score:2, Interesting)
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.
Re:Patent procedures must improve first (Score:1)
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.)
Patents on living things (Score:1)
I think I'll file for a patent on my first born child.