If they actually developed the genes themselves, I'd lean towards the thought that they should be patentable.
However, in this case (and in every case that I know of involving Monsanto) they've simply patented something they discovered, not something they invented.
The gene in this case is the "Roundup Ready" gene... which comes from a bacteria they discovered that was living in the soil they saturated with their Roundup poisons. They extracted this gene and inserted it into the plant by way of a virus... so they didn't invent the insertion method either (the virus did). Yes, they had a guiding hand in which gene got transferred, but that's process and that's not what they're suing over.
In other cases, they simply patented genes that they never even interacted with, such as the large hog gene. This is fundamentally broken... I'm not sure what happened to the rules against patenting nature/life.
As to the merits of this case, I can see it going either way - the arguments are definitely novel.
Personally, I think:
1. Patentability of discoveries (not inventions) should be examined closely (and discarded!). There used to be rules against patenting nature/life... as stated above, I'm not sure what happened to those (IA-quite-obviously-NAL).
2. SCOTUS should consider that Monsanto sells a product that is intended to be used to replicate itself - then suing people who use the end product as nature intended for further replication. Consider if this were a seed that produced a seedless fruit... you'd have to be a bit more creative than following nature to replicate the plant (grafting and such). That effort wasn't applied here at all.
3. SCOTUS should examine the fact that Monsanto has completely lost control of their product and that it should be viewed as an infection.
To elaborate on that last point, imagine you're an organic farmer and you go through an extreme amount of effort and cost to ensure you have truly organic seed. You plant this seed on your land that has been organic for >3 years (requirement for getting a USDA Organic label, as I understand it) and grow your crop. Bees come to gather nectar and in doing so, pollinate your crop (nature at work). Unfortunately, there's another farm within range of the bees that has Monsanto's crop growing, and your crop gets fertilized with the neighbor's pollen. The product of your hard work now contains Monsanto's genes, they come on your property without your permission, take parts of your crop for analysis, then 2 years later (ensuring you have no proof to fight it) they launch a lawsuit against you claiming you stole their product and sue you into bankruptcy. EDIT: Not only have you lost your current crop and your money, but you've also lost your organic label since you now have a non-organic crop growing in your fields (even though the non-organic part is only the product of the plant and not the plant itself).
This is not a theoretical possibility, this is their MO. They're wiping out all sources (crop-reuse methods, included) of seed so all farmers will be forced to buy seed from them (they also control the majority of non-GMO seed, they've been buying up smaller seed companies for eons).
Edited for formatting and added one line to the 2nd-to-the-last paragraph.
1. There are already rules here; in terms of non-transgenics and natural sequence, the case you should look at is myriad, which is also being considered by the supreme court. I agree with monsanto here, and against myriad on diagnostics of natural variants.
2. Let me guess, you are not a farmer. Most seeds aren't saved "as nature intended". This is true of non-transgenics as well in the form of hybrid seeds.
3. Ugh...
Finally, regarding your last "scenario"; can you name an actual similar event where what you saying is even close to true (please don't link to the Percy Schmeiser case)?
Let's take a close example, rose hybridization. Most new popular rose hybrids are protected under ordinary plant patents. If you want to grow the plant you need a plant patent license to do so and buying a plant at a store gives you this. There need not be an explicit license from anyone but the one who actually makes the clones.
This is a good balance because the plant patent act does not reach sexual reproduction. One does not need a plant patent license to hybridize two other patented varieties (rose hybridization is hard too). This means that the plant patent is very limited in scope. Transgenic patents which cover sexual reproduction however are largely unlimited in scope and therefore very dangerous and it is for this reason that Monsanto should lose unless Congress speaks clearly that such may be patented.
2. No, I'm not a farmer, but my ancestors were, and the family farm is surrounded by other (current) small farmers. The "field corn" (intended for cattle feed) that grew on my grandfather's farm in the '70s-'80s was far sweeter than any engineered "sweet corn" I've had from any supermarket for the last 25+ years. This corn was grown using the old methods which I've seen many claim (as you have) are no longer used. Maybe the industrialized farms aren't saving their old seed (because they're likely all using GMO seed), but the small (family) farms still are (especially organic ones). Why wouldn't you use this method? Why sell something you have to re-purchase, especially when, after several seasons, the seed is effectively acclimated to your environment and more productive? (of course you can't use this method if you're using GMO seed)
"3. Ugh..."
http://www.npr.org/templates/story/story.php?storyId=1290104...
TL;DR: 86% of "wild" canola is GMO, most of which contain multiple engineered genes (multiple generations of contamination). At this rate, it won't be long before "wild" canola is extinct.
http://articles.latimes.com/2012/feb/17/local/la-me-gs-organ...
http://www.npr.org/blogs/thesalt/2012/02/27/147506542/judge-...
This will likely be viewed by those supporting Monsanto as BS, but I'll include it anyways:
http://www.thefutureoffood.com/
Countless heritage species of corn grown by families in Mexico are GMO contaminated... effectively wiping them out.
Because it's much less efficient for many crops. The technology of saving seeds wasn't unseated by GMOs in the 90s, it was unseated by hybrid crops in the 20s.
"Today, hybrid seed production is predominant in agriculture and home gardening, and is one of the main contributing factors to the dramatic rise in agricultural output during the last half of the 20th century. In the US, the commercial market was launched in the 1920s, with the first hybrid maize. All of the hybrid seeds planted by the farmer will be the same hybrid while the seeds from the hybrids planted will not consistently have the desired characteristics. This is why hybrid seed is constantly repurchased by growers for each planting season."
This process is certainly not extinct.
The Legality section has some tidbits that might actually be useful in this case.
It just moves to hobbyists / fringe. Mainline agriculture hasn't saved seeds for a long time (coming up on 100 years) for many crops due to the improved performance of hybrids. Seed saving is brought up w/r/t GMOs because it makes for a better narrative. People actually originally attacked hybrids with the same approach ... farmers wouldn't be able to save seeds since their saved seeds would be worse than the hybrids.
The first major biotech "invention" was Humulin. Basically putting the human gene for insulin in bacteria to produce human insulin. Humulin launched the biotech industry. You should consider how your logic applies to that case. While I find your reasoning appealing, I don't think it is sound or applicable.
This is problematic - you can imagine a NPE taking this to heart and simply producing proteins for all the known human genes and contesting any future treatments based on protein therapy.
Perhaps recombinant gene therapies should be regulated in the same way as pharmaceuticals where the first company to market would be protected for some time from competitors who would sell the same compound. In this system, using an unrelated peptide that had the same effect as insulin would be permissible but simply re-cloning human insulin would not be.
As a side-note, I think there was a technically-innovative approach [1] used to make humulin which involved two non-naturally occuring nucleotide sequences. I suppose these might be patentable for glabrifons'...
1 - Unfortunately, I can only find this source: http://books.google.com/books?id=gP4V4uGqp94C&pg=PA755&#...
However, if someone were to use the same process they used for gene insertion (which is more likely to be an invention than a gene they simply discovered), they may have grounds to sue.
The process for gene insertion for insulin was the Herbert/Boyer recombinant DNA patent that was widely licensed by Stanford: http://www.genome.duke.edu/centers/cpg/case-histories/semina...
If I had to pick Genentech protecting their drug via a patent on an E.coli bacteria containing human insulin gene vs. the method to move the gene I'd take the former for sure. The method was much more broadly useful.
Monsanto is just being greedy here, and the net impact on their profits will be minimal even if they lose. There will always be a market for them to sell engineered life "factory fresh" even if people use secondary generation of seed.
Farmers are sympathetic figures deeply tied into national culture. They use this to their advantage. That's how we have tens of billions of dollars in agricultural subsidies and any company that tries to hold farmers to contracts become the target of populist rage.
This suggests a third way out: they could change their name.
For a growing number of people, the name "Monsanto" may as well be "Diablo". For better or worse, labels are abstractions for humans to comprehend the world, and they often influence our thinking in ways we don't perceive and can't resist. Just look at how destructive labels have been throughout history.
So if your name means evil, then changing it may be a way out.
This isn't as unrealistic as it sounds. The only reason I'd thought badly of Monsanto was due to the tales of (sometimes exaggerated) horror from the people around me. But if Monsanto does their rebranding with some finesse, and completely abandons their old name, then it wouldn't be as easy for the general public to merely lead each horror story with, "So here's what that company, formerly Monsanto, used to do..."
In fact, they'd likely have to qualify the horror story with "used to do" (as opposed to "currently acts this way") since a new label would force most people to think of them as a new company, whether or not they realize it. "New label = new thing" is practically hardwired into our brain, and the effects reveal themselves when we communicate.
Otherwise smart people are just blindly angry about GMOs for some reason. It's really disappointing.
How well did that work for Xfinity?
Well, https://encrypted.google.com/search?q=xfinity
"XFINITY by Comcast"
Changing one's name doesn't work if you merely add to it.
http://www.businessweek.com/debateroom/archives/2007/12/gmo_...
https://www.signaturemd.com/modern-poison-are-genetically-mo...
Not one person I know who is against GMO foods is uneducated about it - quite the opposite... they aren't interested until they start researching the topic. I couldn't care less until my wife started researching it (due to severe reactions by family members). Before then, the only thing I had against GMO was fishy-tasting tomatoes.
Another problem I have with mass deployment of GMO crops is the reduction of active species. Imagine what a simple blight would do to our food supply. Example: http://en.wikipedia.org/wiki/Great_Famine_(Ireland)
There is room for debate here, but one certainly does not have to be ignorant to regard Monsanto as "evil".
Here's a hypothetical question: Imagine that Monsanto only sued the farmer if his crop was contaminated AND he used Monsanto's Roundup-Ready herbicide (or a generic equivalent that specifically targets Monsanto crops like Roundup does). Also imagine that he could keep the 'organic' label by showing that there was only a small amount of contamination. In this scenario would you still consider Monsanto to be evil?
Sadly, you and I are not "Roundup Ready" and don't have any mods to our endocrine system to help us cope with eating it and the additives (surfactants) used to bind it to crops.
I get a lot of flack for this in political circles but I think that IP law is a field which has more importance for the future regarding individual rights than, say, abortion. We are talking about IP-based monopolies here over crops, medical tests, and the like, and the scope of these patents is just unprecedented. I don't know what to call those who want such power other than evil.
The Supreme Court has been pretty good recently on these issues, for example overturning patents on recommended results in medical tests (and therefore allowing competing ways of measuring the same thing), greatly restricting uses of secondary patents in medicines and the like. Now they are considering two cases:
1) When you patent a self-replicating technology, is the patent exhausted when the product self-replicates, particularly when the purpose of the patented object is self-replication (patented soybean seeds have the purpose of producing more soybean seeds and that's what they are sold for the purpose of doing). I suppose this would have some implications regarding home rose gardens and the ability to legally share patented clones but aside from emerging transgenic crops the implications are not very heavy.
2) Can a part of the human genome in the abstract be patented? Who owns your genes? I think this must necessarily follow that these can't be patented from Prometheus v. Mayo (decided last year, no IANAL) because that case held that you couldn't patent what the result of a drug test meant. But if this can't be patented, then surely patents on crops are exhausted after first sale.
[0] http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...
What I can see from a cursory look at the court documents is that the court dismissed on grounds of irrelevance his claim that he neither used roundup nor any similar herbicide on the crop in question.
Second, I have yet to hear a serious argument against the tech that Monsanto is producing. I hear a lot about how they're raping the poor farmers, but, as far as I know, those farmers aren't being forced to do business with Monsanto. I'm pretty sure they've chosen to do business with Monsanto because their seeds produce higher yields at lower prices. That sure seems like a positive to me. I also hear a lot of arguments that are basically various forms of "I think this tech sounds icky."
[0] http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeis...
If you read your own post, you'll see that you claim that every case involves: a) a contract b) a breach of mentioned contract
Yet you seem to reference a case in which there was no contract between Monsanto and the farmer, thus contradicting the aforementioned universal claim a.
Can you explain this seeming paradox? Or are you just abusing the language to paint a pretty picture?
http://en.wikipedia.org/wiki/Genetic_use_restriction_technol...
Of course, they were called destroyers of the natural order of all that is good when they invented it, so they've vowed not to use it. Instead, they ask anyone buying their seeds to sign a contract agreeing not to save those seeds, which should eliminate the need for the terminator gene. Of course, farmers sign this contract because Monsanto's seeds are a really, really good deal for them! Unfortunately, guys like this want to have their seeds and save them, too, even though they signed a contract saying that they wouldn't. Even more unfortunately, most people who hear about cases like this reactively invent a small-farmer-vs-the-evil-corporation narrative that has nothing to do with reality.
Given time, technological means always fail and it's necessary to resort to law. In this case, because terminator seeds will never be able to prevent 100% of seeds from being fertile.
But yet, I see the importance of biotechnology, specially because I believe bioengineering might be useful, actually using biological things to make constructs, like living buildings, vehicles, batteries, and that sort of things.
On this case, I hope monsanto loses. Because they winning would set a too dangerous precedent.
Yet, they losing, would not damage biotech too much, you could always invent biotechnology that cannot be easily reproduced.
My father is friend of a guy that invented a special mix of microbial and fungal life that improve composting technology in a very interesting manner, and for him, there is no need to make crazy contracts about people not reproducing what he sells, because he ships them in a way that you can use the living product on your composting solution, but you cannot replicate the product (with enough effort, you CAN replicate it, but the replica is imperfect and the performance is not the same, so if you want 100% of performance, you must buy more of it), it is actually very clever and interesting.
This sort of thing, I would think it is maybe good. But using legal means to prevent normal biological behaviour from happening, it is very bad idea, and quite dangerous in what sort of havoc it might unleash.