[jacquesm]

What bothers me is that there are people that would spend a lot of time and effort on splitting legal hairs over this, rather than to simply state that such patents are ridiculous and then we can all get on with our lives. This whole patenting of natural organisms is disgusting at a fundamental level.

[skosuri]

They aren't patenting natural organisms. In this case, they are patenting specific modifications that provides glyophosphate resistance. This is a fairly legit patent, and if you don't believe this should occur; then basically any patent modifying organisms should be banned, which will have far reaching consequences not just to agriculture, but medicine, bioenergy, chemicals, and biomaterials.

[jrs235]

They are not patenting specific modifications, they are patenting certain DNA sequences. These patents as completely bogus. Monsanto also has a patent for a certain DNA sequence found in hogs/pigs that causes them to produce more meat. The DNA sequence was naturally found in a certain breed/line of hogs/pigs in Germany and Monsanto has gone after the farmers that have these pigs, which have been raised naturally for generations, and sued them to make them pay for their pigs having a certain DNA sequence. It's ludicrous!

EDIT: One could say that those pigs could be considered prior art... even so, you have a multibillion multinational company vs several small family farmers. Who's going to pay the lawyers to defend the family farmers... even to show prior "art"? What realm of delusion and craziness do we have to go to stop arguing about this?

EDIT 2: "patenting specific modifications" tries to imply patenting a process, and fails. "patenting certain DNA sequences" implies patenting the end result of a process.

EDIT 3: I don't have a problem with them having a patent on a particular process to generate the DNA sequences so long as the process reliably results in the organism having the desired DNA sequence. Otherwise the patent would be for a generic process to modify DNA sequences. These patents restrict the use of the methods but not the end results. Monsanto wants to charge and claim ownership of any organism that has the desired DNA sequences. Monsantos business model is flawed and the patent system should not be used to protect Monsantos revenue streams.

[Androsynth]

This is a good example of why patenting a process is acceptable, but patenting the end result is bad.

If Monsanto patented the process itself to create these dna sequences, the German farmers would not be infringing on their patent because they use completely different processes to produce the DNA: one is generated in a lab, the other is consummated in a sty.

If Monsanto found this strain of DNA and managed to reproduce it in a lab and developed a process of mass production, there is no reason they should not be able to profit from the endeavor. There is also no reason why they should be able to sue the farmers. The farmers aren't using their process for producing the dna sequences.

The fact that they could patent the sequences and sue the farmers speaks volumes about the broken state of patents. (As most everyone in tech already knew)

[fleitz]

How could a patent on a specific sequence withstand the machine transformation test?

It would seem a patent on sequence only would be the patenting of information/expression alone which would fall under copyright rather than patent.

[Androsynth]

It probably wouldn't. Copyright in this situation isnt bad per se, but we've all seen how much its been abused in practice, so clearly the moral/ethical issues would be astounding.

[jrs235]

EDIT 4: Perhaps, they might say or claim that through their R&D they were able to identify and produce a pig (or plant) that contains the desired sequence of DNA then if they find that desired sequence of DNA in another pig (or plant) they assume that their process was used/abused to obtain the DNA sequence and immediately sue putting an undue burden on the defendants who often don't have the resources to effectively defend themselves. This is still abusing the patent/legal system.

What do you think about changing civil suits like this (that someone has stolen someone else's "property") to require a criminal conviction first? What other ideas do you have for "fixing" this problem?

[skosuri]

Honestly, I think you are saying things that are just plain untrue. Can you actually point to a single actual monsanto patent that is claiming some sequence and not the invention of making a plant glypshosphate resistant? My guess is you can't, because it would almost be impossible to issue and even it was it wouldn't hold up in court.

[jacquesm]

That's what I meant with 'people splitting legal hairs'.

Which part of 'modifying a natural organism and patenting that modification which then can spread through the normal means of natural replication is fundamentally wrong' is it that is giving you problems?

I know the patent is legit, I understand that such patents are common and that is exactly where I see the problem.

What the far reaching consequences are is beyond my grasp, all I see is a money grab by a very large company at the expense of those that do the hard work to feed us, and that they are concentrating on staple foods because getting a substantial royalty on staple foods puts the world at their feet.

See 'basmati' and a bunch of other stunts they've tried.

[dionidium]

What? This is exactly the opposite situation. It is a money grab, all right, but by a farmer who wants to extract all of the value out of Monsanto's tech by exploiting a "loop hole" in the agreement he signed with them.

Here's the deal: farmers are under zero obligation to use genetically modified seeds. They are free to use traditional seeds. Why don't they do that, then? Because Monsanto's technology is a really, really good deal for them! It produces better yields at lower costs. It is not ridiculous to establish legal systems that protect the further development of such technologies and your small-farmer-versus-the-mega-corp Disney movie synopsis adds nothing to the conversation.

[skosuri]

I'm not sure what you are quoting, but the problem I have with your quote is that you are saying all modern biotechnology should have no intellectual property protection.

[toomuchtodo]

Yes, patenting any modification to an organism should be banned.

It's fun an games when we laugh about the patent wars between Google/Samsung and Apple. But our food supply? I'll be the first to grab a torch and a pitchfork. Fark Monsanto.

[angersock]

Then let us cry tears for those poor, oppressed corporations in agriculture, medicine, bioenergy, chemicals, and biomaterials. It's getting hard to even clear a billion on the ledgers annually.

Truly, these institutions of capital and ~=SCIENCE=~ are more worthy of our aid than the starving, the poor, and the destitute humans across the world.

EDIT: Do you support software patents? All this seems to be doing is reprogramming a living organism, no?

[rayiner]

All these companies in agriculture, medicine, bioenergy, chemicals, and biomaterials have made the world a dramatically better place as a result of their capital investment into science. They work in fields where scientific innovation is very expensive, and keep working because there is a potential return on their investment. Their inventions benefit everyone--the patent system simply lets them capture some of that benefit to justify their investment.

Without Monsanto, the hardy seeds in this case wouldn't even exist. The patent here isn't just protecting Monsanto from poor destitute farmers (and suing farmers is a terrible PR move for Monsanto here). What it's really protecting Monsanto from the inevitable copycat company that would come along, buy a bag of Monsanto seeds, and cultivate them, undercutting Monsanto on price because they didn't have to put in any capital investment.

[angersock]

All these companies in agriculture, medicine, bioenergy, chemicals, and biomaterials have made the world a dramatically better place as a result of their capital investment into science.

Be careful here--this is not an airtight statement. Many of the innovations are arguably simply correcting earlier innovations...mass insulin production is a great feat, but how much of that is used to fix diabetes caused by overconsumption of bad food? How much agriculture research is spent making poorly-processed food more palatable, or making crops resistant to synthetic pesticides?

A lot of innovation may simply be correcting problems that didn't exist before some other innovation happened.

They work in fields where scientific innovation is very expensive, and keep working because there is a potential return on their investment.

Perhaps we should find ways of driving the cost of innovation down? Like, say, loosening patent and licensing burdens to make equipment more easily attainable?

What it's really protecting Monsanto from the inevitable copycat company that would come along, buy a bag of Monsanto seeds, and cultivate them, undercutting Monsanto on price because they didn't have to put in any capital investment.

Agreed, but I do not see the necessary harm in this--again, having a strong brand and good distribution networks and quality products is how they can protect themselves against such a thing. In an optimized market, profit margins are indeed slim--and I suggest that for food production we want an optimized market.

[jrkelly]

mass insulin production is a great feat, but how much of that is used to fix diabetes caused by overconsumption of bad food?

wow, this is a stretch. You realize that there is also Type I (juvenile) diabetes that is an auto-immune/genetic disorder that has nothing to do with unhealthy eating? GMO-produced human insulin (and subsequent engineered insulin analogs that are faster-acting) were major milestone for making that disease into a lifelong treatable condition. As someone with a father who is a juvenile diabetic now pushing into his 60s I'm pretty glad we're OK making capital investments in hard sciences.

[rayiner]

> Perhaps we should find ways of driving the cost of innovation down? Like, say, loosening patent and licensing burdens to make equipment more easily attainable?

A very small portion of R&D budgets go to patent licensing. At the end of the day, what's expensive is that hundreds of PhD's expect to make six figure salaries even if their work is benefitting mankind.

> Agreed, but I do not see the necessary harm in this--again, having a strong brand and good distribution networks and quality products is how they can protect themselves against such a thing

Well now you're trading one kind of IP (patents) for another (Trademark). And what if the other company that swoops in is Con Agra?

[olefoo]

just because patents are the regulatory regime that exist at this time, in this place does not mean that that is the only way to regulate and encourage research in any given field of endeavor.

Given the extremity of the consequences and the enormity of the benefits that the biological sciences could provide us; it is worth questioning a regulatory regime that provides such painful distortions of society and that seems to act as much to prevent the benefits from being widespread as it does to allow the researchers to evade liability for the negative externalities.

[glesica]

Thank you! Dissecting arguments and playing lawyer is fun sometimes, but not when the stakes are real. Even if legal precedent comes down for Monsanto, that just means that the legal precedent is wrong or incomplete, so who cares what the precedent can be manipulated to indicate... Monsanto is in the wrong here, regardless of how this thing turns out and regardless of how the law ends up being interpreted by the court.

[Androsynth]

I disagree. They patented a scientific process, which is what patents were originally designed for. This is a case where patents are actually not disgusting. (If I am misinterpreting the patent, please let me know)

Should chemists have not been allowed to patent the Haber Process? That is a chemical reaction. If chemical reactions are occuring all around us, isnt it disgusting to be able to patent it? No, because patenting a scientific process is a (the?) legitimate patent use case.

pull to refresh is a disgusting patent. Any of the patents mentioned recently by Samsung or Apple are disgusting. This isn't.

[e40]

They patented a scientific process

It seems they've patented the result of a process, not the process itself. The seeds the farmer bought are patented.

[jrs235]

Exactly this! See my comment made above (or below) pertaining to their patent on pigs/hogs.

[freshhawk]

You aren't seeing the distinction between a patented process for producing roundup ready seed and a patent on the lifeform and all of it's descendants in perpetuity.

The owner of the Haber Process patent has no say in what the ammonia gets used for after they have sold said ammonia. Nor should they.

[Androsynth]

This case is a bit different than the Haber process because these seeds are used to produce organisms that manufacture more of the seeds. If you are patenting the process to manufacture this type of GM soybean seed, won't it cover any process that is used to manufacture these seeds, including plants in a field? It is a tricky issue, and I don't know what the precedent is.

However, if they did patent the organism itself, or the result of the process (as e40 said in a sibling comment), then I am against this type patent.

Personally, I think IP law should be small and narrowly defined. I think that patents are valid when it is a scientific (ie non-trivial) process that has a limited duration.

EDIT: After thinking about it, I think the distinction comes down to this: are they selling it? if so they have no ownership rights on the next generation of seeds. Are they licensing it? If so, yes they do have ownership of the next generation of seeds. In that case, they are licensing to you a manufacturing process where you are allowed to sell the output, but you do not own the process itself.

[freshhawk]

Yeah, the analogy to the Haber process, like most analogies, falls apart pretty quickly.

I like that distinction between selling and licensing. It clears things up a bit and also exposes the ridiculous/terrifying consequences of being able to license lifeforms.

We're certainly not far away from modification of humans, at least in small ways, so we better have it figured out by then. If you, through some patented process, gave your children some genes for disease resistance the legal framework in place for agriculture would have the preposterous effect of giving patent holders control over how they were allowed to reproduce. Bit of hyperbolic example surely, but still an instructive one IMO.

[jacquesm]

No, they abused their knowledge of how seeds work in order to rent-seek on a process that worked just fine for untold hundreds of thousands of years without Monsanto.

[rayiner]

"Rent seeking" doesn't mean what you seem to think it does. Rent seeking means to try and extract rents from a process that would have happened without you. Rent seeking would be if the farmer had, through traditional agricultural processes, come up with a seed that had glyophosphate resistance, and Monsanto had sued him on the theory that they owned the patent to glyophosphate resistant seeds.

But that's not what happened. Without Monsanto, the glyophosphate resistant seeds in question would not exist. The farmer in question was free to use regular old soybean seeds and get regular old soybeans. Nobody forced him to use Monsanto's seeds--he did so because he got a benefit from them, a benefit that was the result of Monsanto's invention and its investment in R&D.

[caf]

Nobody forced him to use Monsanto's seeds

It's not so black-and-white as this. You can typically buy excess seeds from the local grain elevator for replanting; these now contain an unseperable proportion of the descendants of Monsanto's seeds, so it's at least become lot harder not to use any of them.

In other cases (not this one), the farmer's field has been cross-contaminated from nearby fields of GMO soy, so they have been forced to use the descendants of Monsanto seed. Are these cases different? Why, in patent law? (Patent infringement does not require intent).

The environment that Monsanto are trying to create is one in which you must pay a royalty to Monsanto if your crop contains any of the descendants of their seeds, and where completely avoiding their seeds is impossible or at least very difficult (and imposes new costs).

[jacquesm]

> Rent seeking means to try and extract rents from a process that would have happened without you.

So, we agree it seems.

Seeds -> procreation -> more seeds.

You missed the bit about splitting legal hairs. I know that lawyers love to do just that but this is food we're talking about, not words on paper.

[rayiner]

Monsanto is trying to profit from a process that goes:

[special seeds + special herbicide] -> procreation -> [special seeds + special herbicide]

Which would otherwise be:

seeds -> procreation -> more seeds.

[spacemanaki]

But the process I assume you're referring to (farmers saving seeds) has changed, and just in the past 50-75 years. Now farms are massive monocultures and are susceptible to pests so they require pesticide resistent crops.

Whether you think that's a good thing or not is another story. Or maybe you think farmers should be able to save GMO seeds. I won't argue with you there, but the process of farming most definitely has changed, and it's not the same as it was thousands of years go.

[illuminate]

"What bothers me is that there are people that would spend a lot of time and effort on splitting legal hairs over this, rather than to simply state that such patents are ridiculous and then we can all get on with our lives."

The only way that the people this directly affects can get on with their lives is by "splitting legal hairs". You can't just say "I disbelieve" and suddenly disempower all systems you disagree with.

[jacquesm]

I think we are talking about two different groups of people.

Me: Judges, patent lawyers, regular lawyers.

You: farmers.

[rayiner]

Playing group politics is non-sensical here. That farmer will happily invoke the legal system on you for trespassing on his property, why should we be so sympathetic now that Monsanto has invoked the legal system for his trespassing on theirs?

[jacquesm]

Because it isn't theirs.

[rayiner]

Monsanto thinks its theirs, and they've got a non-trivial legal argument behind their contention. They'll take you to court to enforce their rights, just like the farmer will if you trespass on his land or try to worm your way out of a purchase contract if prices go down, or if he thinks you did those things.

If Monsanto is wrong and they have no such legal right, that's fine. They'll lose in court, or at least they ought to. But you're making it seem like we should put a thumb on the scale in favor of farmers, just because they're farmers. Everyone takes advantage of the law when it serves their purposes. Indeed, a tremendous amount of law is traceable to serving the purposes of farmers (versus say hunters/gatherers). Indeed, even things we think of as modern instruments, like derivatives contracts, have their roots in farming.

I should note: I don't disagree that Monsanto shouldn't have a claim when farmers don't know their seeds have GMO DNA, either as a result of cross-pollination or not knowing the origins of the seeds. I think it's a weakness of the patent system that "intent" doesn't count for anything.

[danielweber]

Indeed, a tremendous amount of law is traceable to serving the purposes of farmers (versus say hunters/gatherers).

This might be one of my all-time favorite HN comments, because it's caused me to imagine how weird real property would look to the hunter-gatherer only used to personal property, and all the arguments they would use to make against the concept of real property.

One can see the hunter-gatherers gathered up around Hunter News long ago:

* Some farmer somewhere has decided that the crops he just left laying around are somehow his! Well, that makes no sense. If they were his, he should have kept them on his person! Everyone knows that! It's perfectly obvious that things you leave lying around belong to everyone and the next person who can pick it up gets to use it!

* They call it "real property" but it's not "property" -- you can't take it with you! Duh!

* Oh, sure, they try to say the ways it's like personal property, like the person who made it has a moral right to it, or that they wouldn't have built that house if they didn't get to keep it. Balderdash!

* Someone explain to me why you even need "real property" for society to function. It seems we didn't have it for thousands of years and everything worked okay!

* Did you know that under "real property" you can be excluded from certain land, just because someone else "says" it's theirs?

* What are they going to do, put a cop on every single piece of land to make sure no one trespasses? This will collapse under its own weight.

[tptacek]

You just moved the goalposts. In the comment Rayiner replied to, you invoked us-vs-them, but when challenged, you retreat to a substantive claim. Why not just concede his point and move on with your broader argument?

[jacquesm]

I don't think it was me that moved to the 'trespassing' analogy.

Monsanto claims those seeds are their intellectual property, when actually it is the process of modifying the seeds that they came up with. So they are claiming trespassing where in my view there is no such thing happening, they are claiming trespass on a public road.

[illuminate]

I don't believe the other category is allowed to selectively ignore all precedent they disagree with either.

[crusso]

Are you saying the ends justify the means?

Wrangling with the legal issues enforces consistency in our approach to the laws that govern our society. This approach is absolutely necessary in order to ensure that the base patent laws that are intended to promote innovation are extended logically in their interpretation.

Monsanto has spent incredible amounts of money and effort in pushing genetic engineering forward in order to create more food for the planet. Shutting them out from being able to profit from that effort would seem to be the only notion that is "ridiculous".

The exercise of coming up with a consistent legal approach in dealing with their claims is perfectly legitimate and noble.

[jacquesm]

> Monsanto has spent incredible amounts of money and effort in pushing genetic engineering forward in order to create more food for the planet.

I think you are misinterpreting Monsanto's mission to a frightening degree. Google posilac for instance.

Monsanto is good at PR, I knew that but that they're able to position themselves as the saviors of the planet is beyond what my cynical imagination could come up with.

[angersock]

And they've made it so that it is annoying to get, in bulk, seed which they cannot claim copyright or patents over.

You get to support that farmers are violating Monsanto's rights by replanting 2G seeds, or you get to claim that Monsanto has moved the world forward by making better plants for everyone--these claims are mutually exclusive if you are optimizing for "The most seeds and plants for everyone."

[rayiner]

I for one would support a Constitutional amendment to replace the Supreme Court with a process wherein we simply e-mail jacquesm for his opinion on how we should handle any given situation.

[shawn-butler]

If we take your jest with some seriousness, a judiciary directly accountable to the people is a pretty bad idea. What you generally get is judges who like jacquesm wrap their political beliefs up in just enough pseudo legalese to seem acceptable to the lay public, but are quite wrong on the details (and often say things like the details are unimportant, "splitting legal hairs" etc when confronted with actual legal theory). This is extremely dangerous.

That isn't to say the current system precludes those people either (Earl Warren for example) because it is still a political process but it is more resistant.

That being said, I think that SCOTUS would be better served in cases of patents and sci/tech in general by using the process they currently use to handle important cases like the water disputes between Kansas and Nebraska being argued presently. SCOTUS appoints a special "master" to work on behalf of them to figure out the core issues and educate them. I could see someone like a Richard Posner being an excellent master for patent and SciTech internet related cases.

[ChuckMcM]

Splitting hairs is how you actionably say "such patents are ridiculous." You see if you split enough of these hairs, the judiciary says, "Wait, there is no way this can ever be resolved, it is fundamentally broken." and they toss it out. If folks can only find one or two exceptions, well maybe it is a reasonable principle after all.