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Comment Re:I still think this guy should countersue . . . (Score 2) 308

According to the testimony of the lower court, yes, he did spray it with the explicit intent to kill non Roundup-Ready crops and grow only Roundup-Ready crops. Not that this is necessarily illegal. But beyond testimony, spraying Roundup on non-RR crops will absolutely kill them; he'd have no other reason to use glyphosate than to grow RR crops.

Also, unrelated to this response, why exactly was I modded "Troll" for my (admittedly flawed) analogy above? I'm not defaming or flamebaiting or attempting to be derisive. I'm merely recapitulating the facts of the case as it's been litigated thus far. Although I have now unlocked the "+5 insightful // +0 troll in the same thread" achievement!

Comment Re:I still think this guy should countersue . . . (Score 1) 308

Yes, since its inception patent infringement has always been applicable to users and not simply producers. That's nothing new to patents; there is no "fair use" claim regarding non-profit or end-user use. Patents can be infringed for making, using, offering for sale, or selling any patented invention or a component or components thereof. Patents are absolutely the most draconian of IP protection. This is supposed to be offset by the "difficulty" and cost of obtaining a patent and the "limited" term of the grant (20 years is a heck of a lot better than life +70 or 90/120 years in case of copyright). Patent experts are seriously questioning whether the scope of patents has gone too far, and now you see the Supreme Court and even the Federal Circuit Court trying to reign in the broad scope that has been allowed.

It should be noted, however, that the only damages recoverable from patent infringement is lost profits, so no patent holder in their right mind is going to go after an end-user accidentally infringing for personal use. Unfortunately, as patent trolls have so readily demonstrated, many patent holders are not, in fact, in their right mind.

Comment Re:I still think this guy should countersue . . . (Score 3, Informative) 308

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.

Comment Re:I still think this guy should countersue . . . (Score 4, Insightful) 308

That's why trade secret protection hasn't taken off, though. Once you're outside of the contract, no protection exists for trade secrets. And once a trade secret is available to the public, it can no longer be protected. This wouldn't help Monsanto, in this case. Once they sold their seed to the farmer, and the farmer could sell the seed on the commodity market (which he needs to do to make a living), the seed is available to the public and poof -- no trade secret protection anymore. Plus, trade secrets can be reverse engineered, which would completely wreck the pharmaceutical industry; spend a few ten-thousand to reverse-engineer the product your competitor spend millions on researching? Sure! Why not?

Granted, I think many of us are of the opinion that Monsanto doesn''t need or deserve legal help, but there is a need for patents/trademarks/copyrights, even if on a significantlymore limited scope than we see them today.

Comment Re:I still think this guy should countersue . . . (Score 1) 308

Mind adding a citation to the cross-pollination as patent infringement argument? I'm not claiming that you are wrong, but in all of my research on the issue I have not seen a court advance an argument that accidental cross-pollination or seed drift constitutes patent infringement. Up until Bowman, the idea has not been advanced that subsequent growths can constitute patent infringement, as the general idea is that the farmer must actually do something to infringe. It never was an issue until seed patents because patented machines don't build subsequent generations of themselves (yet, anyway). I agree that Monsanto would be better protected by their terminator gene products, and that may be down the pipe. They haven't implemented the product yet, though, and claim they have no plans to. I suspect this is due to the fact that it is effectively unmarketable. Of course, because the terminator seeds predate the Roundup-Ready seeds, patent protection on them has likely expired and would be of no financial use to Monsanto anyway. Monsanto's certainly within their right to want to maximize patent protection in their own interests. The question that is to be debated is whether subsequent generations of crops can infringe, and that issue has not yet been considered or decided.

Comment Re:I still think this guy should countersue . . . (Score 1) 308

The sellers were contractually allowed to sell the seed on the commodity market; indeed, that was the only thing they could do of value with the seed in the first place. They would sell to the grain elevators, and the grain elevators sold to Bowman. The grain elevators were not bound by contract. Nor, in any case, would a contract violation be a patent violation.

Comment Re:I still think this guy should countersue . . . (Score 3, Insightful) 308

Agreed. But that is exactly what a patent enforces... a monopoly for a limited time. SCOTUS will not overturn on the monopoly issue alone, as Article I Section 8 of the U.S. Constitution is explicitly clear on acknowledging a monopoly. It's likely gone too far in application, but patents are designed to restrain free market trade and to allow for a "currency" of sorts as upheld by law as well as to sanction a monopoly. The question, statutorily, is whether IP protection has gone too far and now enforces a monopoly no longer successful in promoting "useful arts and sciences" by rewarding innovation. Unfortunately, SCOTUS has been extremely shy of the issue, especially in copyrights (see Eldred v. Ashcroft). They will likely rule on the more narrow issue of subsequent generation/self-replicating infringement.

Comment Re:I still think this guy should countersue . . . (Score 1, Troll) 308

Except in this case it's like the record company suing you for burning a CD you downloaded from a grey-market source. Monsanto seed didn't "appear" on Bowman's land; he bought commodity seed and planted it without a contract with every intention of circumventing the Monsanto monopoly. The question, in copyright terms, is whether his use was a "fair use." Sort of.

Comment Re:I still think this guy should countersue . . . (Score 5, Informative) 308

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.

Comment Re:Probably (Score 1) 761

1) It's not my argument but many legal scholars' that I've seen in law review articles, and I don't assume it's a very good argument. This is just the most persuasive argument I've seen where deterrence has been refuted.

2) I'd expect there to be a lurking variable that accounts for lower murder rates in other Western countries. The U.S.'s higher rates of violence I suspect are a sociological and cultural function, not a function of the U.S. court system. That said, I think the statistics exist independent of the justice system enacted, and that higher rates generally do not necessarily correlate with whether the abolition or instatement of a death penalty will affect deviation from those rates. Said more simply, just because the U.S. has higher murder rates comparatively does not necessarily mean that the abolition of the death penalty will lower (or raise) murder rates. There is evidence both ways, although personally I find little practical use for the death penalty. I just recognize that the majority of other people I know are much more prone to say, "Kill the f*cker" and mean it when the justice system doesn't grant them the penalty they want imposed.

Comment Re:Probably (Score 2) 761

The death penalty is imposed for retributive punishment. Terrible as that may seem, it's purpose is to satiate the vengeance of the victim or victim's loved ones and prevent them from taking justice into their own hands. Although we may not like the retributive part of humanity, it nevertheless exists, and the death penalty exists to curb that appetite and minimize the amount of vendetta justice.

Comment Re:More hype and angst (Score 1) 499

A few years ago I was saying the exact same thing, and I still have major reservations about homeopathic medicine, but I will be damned if I don't have first-hand experience of acupuncture therapy actually working.

My cat had been hit by a car when she was chasing a squirrel across the road. Fortunately, the car tire only caught the very tail end of her (quite literally her tail and the vertebrae that connect it to hips). She survived, thankfully, due to us being there to take her to the emergency vet, but for a year her tail was completely and totally paralyzed. It was long and it would drag behind her, much to her irritation, and you could touch it and she would never notice. There was no measurable nerve function at all, and she stayed this way for the better part of twelve months.

One of the vets techs at the clinic had been studying animal acupuncture in addition to her clinical rotations, which I thought was the most laughable thing in the world. But she was sweet and didn't like seeing our cat grumpy about tripping over her tail all the time, so she offered, along with the permissive curiosity of our vet, to perform acupuncture therapy sessions on her tail free of charge, just to see if anything would happen at all. Assured of zero risk to any further damage, and because I was curious and try to give anything its fair shot, we agreed.

Two months later, my cat could not only lift her tail, she could swish and flick it with the same mobility she had prior to its injury. It was a recovery so amazingly rapid that I cannot scientifically attribute it to coincidence, especially considering the deterioration that had occurred in the twelve months prior. I'm still flabbergasted. My dad, who has since started massage therapy school and studies a combination of Western and Eastern healing techniques, basically summarized it best: "Each side has their own ideas, and each method maybe has its merits, but neither side has a complete picture. I can't say that energy channeling is as effective as pharmaceutical remedies, but then I can't say that pharmaceutical solutions are the only right solution, either. There's more to us than chemicals, and there's more to us than harmonic healing crystals. Both perspectives are wrong in that they think they have a complete picture, and while I don't have a good answer as to what is a complete picture, I sometimes wonder if that's not the point."

Comment Re:lies, damn lies (Score 1) 499

My dad had been prescribed Oxycontin following a painful surgery but had to dispose of his medication when he found himself starting to get addicted. He had asked about breaking the pills apart so as to take smaller doses, and the doctor blanched. Apparently the time-release portion of Oxycontin has to do with a coating of the pill that takes longer for your stomach acid to digest. If you chew it up or break it apart, the slow-fuse release no longer works, and you metabolize it all at once. Apparently this is one of the leading causes of overdose on Oxycontin.

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