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.
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.