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Biotech The Courts Technology

Supreme Court To Decide If Monsanto GMO Patents Are Valid 308

tomhath writes with this exerpt from a Reuters story: "The U.S. Supreme Court agreed Friday to hear an Indiana farmer's appeal that challenges the scope of Monsanto Co.'s patent rights on its Roundup Ready seeds. Mr. Bowman bought and planted 'commodity seeds' from a grain elevator. Those soybean seeds were a mix and included some that contained Monsanto's technology. The Supreme Court agreed to hear the case over the objections of the Obama administration, which had urged the justices to leave the lower court rulings in place."
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Supreme Court To Decide If Monsanto GMO Patents Are Valid

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  • by NettiWelho ( 1147351 ) on Monday October 08, 2012 @02:20AM (#41581875)
    Countersueing a supercorporation takes a lot of resources, especially when you are already tied up in court.
  • SC Blog. (Score:4, Informative)

    by Ostracus ( 1354233 ) on Monday October 08, 2012 @02:21AM (#41581885) Journal

    SCOTUSblog []

  • by queazocotal ( 915608 ) on Monday October 08, 2012 @04:18AM (#41582307)

    Because roundup is a broad spectrum herbicide.
    While it can also be used as a spray over developing crops of plants engineered to be resistant to it, it was developed purely as a herbicide, and is useful in that role.

  • by Warhawke ( 1312723 ) on Monday October 08, 2012 @04:40AM (#41582379)

    Incorrect. Monsanto seed did NOT drift onto Bowman's land without his knowledge or consent. Thus far, no such case has been litigated where seed drift or cross-pollination has occurred. Obviously that is a very big question that will come out of this ruling, should the court find for Monsanto, as it will arguably put the onus of burden on farmers to test for and destroy infringing crops caused by cross pollination. That issue, however, is not in debate here.

    Bowman realized that a staggering percentage of soybean seeds on the commodity market were Roundup-Ready GM seeds. Normally a farmer has to sign a contract that he will not replant any additional seeds and will buy future generations of seeds from Monsanto. Replanting seeds for these farmers has not been considered a patent infringement but instead a contract violation. The patent infringement idea was unprecedented until this case. Bowman, who had not signed a Monsanto contract, simply decided to buy contract-free seeds on the commodity market, as Monsanto-contracted growers can sell the seeds they are not allowed to replant for general purposes such as food production. Bowman had the novel idea to take these seeds and plant them, spray the seeds with Roundup (thus killing off all the non-Roundup-Ready seeds), and have contract-free Roundup-ready seeds that he could replant at will. Monsanto, which monitors the purchase of Roundup to Roundup-ready seeds under contract, determined Bowman had purchased enough Roundup to be running an un-contracted operation. Unable to ping him on the contract issue, they requested him to stop. He refused, and they sued under the patent infringement theory.

    The question that will be debated here is whether or not subsequent generations of Roundup-Ready crops, by the act of growing them, independently constitute patent infringement. Normally for infringement to occur there has to be some performative action. Monsanto is arguing (and the lower court agreed) that the performative act of planting the seeds in the first place is sufficient to transfer infringement to subsequent generations, and therefore the plants can essentially infringe upon each new growth without Bowman's performative action on subsequent growings.

    It may seem pretty dumb, but it has the potential to majorly impact the food industry. If the court finds for Monsanto, the "auto-infringing crop" theory would make accidental infringers of any farmer who encountered cross-pollination or seed drift. Although no such cross-pollination has been successfully argued -- in all cases where farmers have brought this defense, it has been very well proven that they were lying through their teeth and had planted Monsanto crops in violation of their contract. Conversely, if the court finds for Bowman, this would in effect nullify Monsanto's patent protection on their seeds, as no farmer would buy from the developer, bound to a contract, where they could just go out and buy commodity seed at a fraction of the cost.

    I've researched GMO patent intensively, written articles, and have followed the case for a while now. I think the one constant among GMO patent cases is that both sides -- Monsanto and farmers alike -- have done nothing but provide a tremendous amount of misinformation about the other side. No party line can be trusted. Monsanto argues that they're just trying to make a living and don't gouge anyone, being a humble food producer. Farmers argue that they're being put upon by the big corporate food monopoly and haven't done anything inappropriate other than try to grow organic foods. Both sides are lying and are trying to wage war to maximize their profits. Being as rabidly anti-DRM as we are, I suppose Slashdot readers will support the farmers. Either way, this issue is pretty big for determining whether the judiciary is embracing the pendulum swinging back to more restrictive patents or is continuing the trend of expansive patent protections.

    Also worth noting, Monsanto's patents on Roundup-Ready soybeans are set to expire in the next few years, IIRC. The question is going to be entirely academic and legal and will likely have no effect on Roundup-ready crops at all after the patent expires.

  • by ElitistWhiner ( 79961 ) on Monday October 08, 2012 @05:20AM (#41582551) Journal

    2nd generation of seed non-conforming under patent aside, statutes under the commerce clause are what is at stake in this case.

    Ruling for the patent holder enforces a restraint of trade eliminating free market economy in agri-business
    Upholding the patent establishes a ' fiat currency' whose store of value ( seed) and medium of exchange are enforced by law. SCOTUS
    Ruling in favor of Monsanto will sanction a monopoly

  • by Anonymous Coward on Monday October 08, 2012 @05:37AM (#41582635)

    It's fallacious reasoning to put the company Monsanto at one side of the story and 'the farmers', on the other side. Specifically, it's called a hasty generalization. There are many stories about farmers running into problems with Monsanto and you can't just claim that all those farmers are lying and just want to max profit. Talk to some Indian farmers for example, o wait, thousands of them have committed suicide after they got conned by Monsanto.

  • by Dachannien ( 617929 ) on Monday October 08, 2012 @05:52AM (#41582725)

    breeding plants which create their own insecticide?

    The seed in question here doesn't produce its own pesticide. Roundup Ready plants are engineered to be resistant to the herbicide Roundup.

  • by shentino ( 1139071 ) <> on Monday October 08, 2012 @07:15AM (#41583175)

    The real infringer then would appear to be whoever sold the commodity seed to the farmer, as well as anyone between him and Monsanto in the supply chain that did not comply with their own license, if any.

  • by Anonymous Coward on Monday October 08, 2012 @07:38AM (#41583327)

    This Venn diagram might be handy for ya... []

    Shows just how many foxes we have guarding the so-called henhouse without much oversight. Definitely a problem when people who are trusted to make public decisions are too heavily weighed by their own personal economic interests. (If it makes their stock shares go up, what the fuck do they care about the rest of us?) Revolving door policy is worse than insider trading in some regards.

    At least that diagram will give you names to start with, the rest would still be up to you to research.

  • by andydread ( 758754 ) on Monday October 08, 2012 @07:56AM (#41583459)
    Politicians are generally Ignorant of the inner workings of giant multinationals. Politicians rely on "inudstry Experts" for advice. These "Industry Experts" must have experience in the relevant industry. Michael R Taylor is the head of the FDA I believe. He was also supposedly a former Monsanto executive. Given these facts I would assume that Mr Taylor would not want to see the company he had ties to losing their shirt in this deal and may be pushing for this case to go away. While the good news is that this Supreme Court has not be friendly to patents on natural processes, The bad news? Both Justices Clarence Thomas and Elena Kagan had ties to Monsanto in the litigation business. Whether they sued farmers for patented seed while working as litigators for Monsanto is beyond me. Maybe someone on /. can dig up some history on the work CT and EK did for Monsanto.
  • by Jesrad ( 716567 ) on Monday October 08, 2012 @08:09AM (#41583547) Journal

    Hmm no. The study done by Seralini, when analysed properly, shows that rats of the specific strain used during the trials developped the normal, expected proportion of tumors (which is 2 to 8 per group of 10 individuals), whether they were fed GMO, Roundup, both, or non-GMO corn. The author of this study mistakenly concluded that there was an effect, whereas his results were actually statistically insignificant.

  • by pseudofrog ( 570061 ) on Monday October 08, 2012 @08:55AM (#41583863)
    There were many, many criticisms, including:
    1) The fact that the control group contained 10 mice. That's right. 10 mice.
    2) Risk didn't scale with dose
    3) One of the authors is a homeopath, and both have a long history of making dubious (at best) claims about GMO
    4) The rats who were given water laced with Round-Up lived longer than the control group. If you believe GMO causes cancer based on this study, you should also be trumpeting the fact that Round-Up seems to prevent cancer
    5) The rats used develop tumors at a very high rate

    The study is beyond flawed or problematic. It's worthless, and it should be disregarded entirely by serious scientists and policy-makers.
  • by jenningsthecat ( 1525947 ) on Monday October 08, 2012 @09:11AM (#41584013)

    Maybe someone on /. can dig up some history on the work CT and EK did for Monsanto.

    According to the Wikipedia entry on Monsanto, Clarence Thomas worked for the company in the 70's. I can't find any specific info on what he did for them. My guess is that Thomas would defend his refusal to recuse himself by pointing to the 30-years-plus that have lapsed since he was employed there.

    Elena Kagan was Solicitor General in 2009 when, according to, "the Ninth Circuit Court of Appeals upheld the previous ruling and placed a nationwide ban on Monsanto's Roundup Ready alfalfa." Again from, "In March 2010, a month before the Supreme Court heard arguments in the case, the solicitor general's office released a legal brief despite the fact that the US government was not a defendant in the case." This brief argued that "The judgment of the court of appeals should be reversed, and the case should be remanded with instructions to vacate the permanent injunction entered by the district court." However, as far as I can determine, Kagan never worked for Monsanto.

    Regarding Monsanto's influence in the Obama administration, has the following to say: "At least three former Monsanto execs hold high positions of power in the Obama administration. Michael Taylor, senior adviser to the U.S. Food and Drug Administration (FDA), used to be vice president of Monsanto. Islam Siddiqui, former vice president of the Monsanto-funded lobbying group CropLife, is now a negotiator for the U.S. Trade Representative on agriculture. And Roger Beachy, the director of the National Institute of Food and Agriculture, is former director of a plant science center funded by Monsanto.

    To me, the only surprise here is that people are surprised by all of this - it's just business as usual. When citizens allow their politicians to spend unlimited amounts of money on election campaigns, this kind of rampant abuse is inevitable.

  • by tomhath ( 637240 ) on Monday October 08, 2012 @09:19AM (#41584123)
    Google is your friend []

    The case may undermine a legal doctrine the Federal Circuit has adopted to extend the rights of patent holders. Under the so-called conditional sale exemption, patent holders can enforce their rights even after making a sale of the covered product. The doctrine has given patent holders the power to enforce restrictions against downstream purchasers...The Obama administration’s top Supreme Court lawyer, Solicitor General Donald Verrilli, told the justices that the conditional sale doctrine is inconsistent with the 2008 ruling. Even so, Verrilli said the court should reject the appeal because the Federal Circuit didn’t focus on the conditional sale issue in the Monsanto case.

  • by the eric conspiracy ( 20178 ) on Monday October 08, 2012 @09:42AM (#41584369)

    Monsanto in the 1970's was a very different company than it is now. During the 1990's Monsanto, like a lot of large chemical companies split into two firms, one of these was Solutia which is the chemical arm of Monsanto, and Monsanto which was the life sciences operations of Monsanto which included GD Searle. This life sciences company merged with Pharmacia and Upjohn which became Pharmacia.

    Late the same year Pharmacia spun off the agriculture business segment of their business which was mostly parts of the Monsanto life sciences operations.

    Since the customers of this Ag business were used to the name Monsanto, that's the name they adopted.

    So today's Monsanto is missing all of the old chemical business that is actually Solutia, and parts of the old life science business (drugs etc.) and is pretty narrowly focused in the ag business.

    You see a lot of claims that Monsanto is a chemical company, well really that's not true any more and hasn't been true for about 15 years.

    I would be very surprised if Clarence has any contacts at the current Monsanto.

  • by chihowa ( 366380 ) on Monday October 08, 2012 @09:51AM (#41584469)

    Let's just talk about the surviving insects who are developing immunity to the chemicals and becoming super-bugs. Will Monsanto be held liable for this creation of theirs?

    Roundup is a broadleaf herbicide, not an insecticide. Also, the allegedly infringing GMO plants don't produce Roundup or any other pesticide, they only allow Roundup to be applied to them without killing the plants. In order for them to behave differently than his other plants, the farmer would have to douse his crops in Roundup (which he did).

    Can we try to at least get the facts straight before we start going off into left field with our interpretations?

  • Rotten Summary (Score:4, Informative)

    by the eric conspiracy ( 20178 ) on Monday October 08, 2012 @09:57AM (#41584525)

    Well, looking around the internets finds that the article and summary are in this case rather poor. Fortunately there are better sources, in this case a good Reuters article: []

    In Bowman's case, he planted Roundup Ready seeds as his first-crop in each growing season from 1999-2007 and did not save seed in compliance with licensing agreements. But he also purchased commodity seed from a local grain elevator for a late-season planting, or what is known as a "second-crop."

    The farmer applied glyphosate to his second soybean crops and was able to identify herbicide-resistant plants, from which he then saved seed for subsequent years of second-crop planting, according to the court documents.

    So this is really a case over both patent exhaustion and contract law. It's interesting that the seed selection step is the same process that got Percy Schmeiser in trouble.

  • by DragonWriter ( 970822 ) on Monday October 08, 2012 @10:07AM (#41584665)

    Elena Kagan was Solicitor General in 2009 when, according to, "the Ninth Circuit Court of Appeals upheld the previous ruling and placed a nationwide ban on Monsanto's Roundup Ready alfalfa." Again from, "In March 2010, a month before the Supreme Court heard arguments in the case, the solicitor general's office released a legal brief despite the fact that the US government was not a defendant in the case." This brief argued that "The judgment of the court of appeals should be reversed, and the case should be remanded with instructions to vacate the permanent injunction entered by the district court." However, as far as I can determine, Kagan never worked for Monsanto.

    Its also worth noting that the claim that the Solicitor General "released a legal brief despite the fact that the US government was not a defendant in the case" is a bald-faced lie. The US government was the original defendant in the case at the trial level, which was a challenge that various government entities, particularly the US Animal and Plant Health Inspection Service, had violated the federal law in the process of approving Round-Up Ready Alfalfa without an Environmental Impact Statement. Monsanto was not an original party to the case at trial level, but was an intervenor at trial after the decision and in the remedy phase. The U.S. briefs at the Supreme Court were not non-party amicus briefs, they were briefs "for federal respondents". Documents relating to the case are available at SCOTUSblog [].

  • by Anonymous Coward on Monday October 08, 2012 @10:28AM (#41584919)

    FWIW, I wrote a blog post [] showing in a simple, graphical manner that the variation between the treatments in the Seralini study isn't statistically significant. The study isn't conclusive at all and it really shouldn't be used as the basis for anything. It's just too bad that it got so much attention (thanks to the press conference and sensational pictures) while its multiple flaws seem to have much less traction in the media and public discussion.

  • by Warhawke ( 1312723 ) on Monday October 08, 2012 @12:25PM (#41586557)

    This is the very basis (seed drift, AFAIK) on which Monsanto has seized lands so far. Every case of Monsanto land-grabbing is a citation.

    No, every Monsanto case litigated thus far regarding Roundup-Ready crops has involved farmers gathering seeds from their own contracted plantings (or in Bowman's case, a commodity source) and replanting them with the intention of growing Roundup-Ready crops. No case at all has ever involved seed drift, which means that the seeds have fallen across someone's property line so that a non-RR farmer winds up accidentally growing RR soybeans. Same goes for cross-contamination and cross-pollination. Yes, a number of farmers have claimed seed drift as a defense. In every case, the jury determined that the farmer was lying, usually evidenced by the large quantities of Roundup they were purchasing. "No, I didn't plant those GMOs; I didn't even know they were there. I just so happened to buy a huge vat of Roundup to spray on them, even though I didn't know they could tolerate glyphosate." That argument didn't work. Monsanto, for all of their big-corporate-y evil, has never prosecuted a case on the grounds that a farmer has raised RR crops from seed drift or cross-pollination. Period. Every case on record goes against your vague generalizations. So either you are misinformed or you are trolling. There are innumerable reasons to despise Monsanto. I would suggest adopting one that is based on fact rather than hyperbolic party-line rhetoric.

There's no such thing as a free lunch. -- Milton Friendman