Patent Trolling 2.0 – by “Benjamin G”

According to this NPR article, 86% of wild canola plants in North Dakota contain genetically modified genes. This isn’t a problem for the environment; the pesticide-resistant plants are no more fit in the wild. They basically behave like normal canola unless someone sprays pesticides on them. On the other hand, it is a huge problem for patent law.

Monsanto, the company that developed Roundup Ready Canola, holds a patent on it, and 86% of North Dakota’s wild canola fields are infringing that patent. Patent liability doesn’t require intent, or even knowledge; if you are using a composition of matter that someone else patented, you can be sued. Percy Schmeiser found that out the hard way when Monsanto took him to court for planting Roundup Ready Canola on his farm in 1998.

In 1997 Schmeiser found that some of his crops were resistant to Roundup. He didn’t intentionally plant Monsanto’s product – some seeds might have fallen off a truck or blown on to his property from a neighboring farm. Discovering this happy accident, Schmeiser saved the seeds from those plants and replanted his fields the following year using the resistant seeds. Monsanto sued him for patent infringement and won; luckily for Schmeiser the court found that, since he hadn’t used Roundup on his crops he had received no benefit from the infringement and so owed no damages.

The specific facts of the Schmeiser case are a bit more complicated than that and it happened in Canada, so the legal details of the decision are not important. The main issue, however, is very relevant. U.S. statute and case law explicitly permits patenting living things. And it is one of the defining attributes of a living thing that it can reproduce itself. What happens when a patented organism comes into your posession literally on its own volition? As I said, it’s no defense to show you didn’t know you were infringing a copyright.

Monsanto is certainly not a nice company, but they seem to be just protecting their core business. There are other people out there who are not so benevolent, and the current patent law presents a serious liability issue. We have patent trolls in the tech industry- is it so far fetched to imagine one of them patenting a computer virus? Suppose it actually helps your computer run more efficiently, but is impossible to detect. The troll could come in and sue you for copyright infringement and collect damages for all the benefits you gained from his program.

If it can happen in software, why not in biology? Surely someone could create and patent a new organism whose main goal was to spread itself as widely as possible and implicate as many people as possible in patent infringement. He would of course have to be clever about how he worded his patent application, but I have no doubt it could be done. Depending on how good his organism was, pretty soon he could sue anyone he wanted.

Patents grant their owners a temporary monopoly on their inventions. When we allow patents on things that you can “use” without your knowledge, though, we open the door to people forcing you to pay for goods you didn’t want in the first place. I’m not really sure what the best solution to this problem is. I do think organisms should be patentable, so I guess I would have to take a look at the strict liability aspect of the law. In copyright, for example, if you can prove you never knew about the copyrighted work then you are not liable for infringement. There may be a good reason why patent law is different, though – I just don’t know what it is.

6 thoughts on “Patent Trolling 2.0 – by “Benjamin G”

  1. Have to go back to first principles. Why do we have patents and copyrights at all? To encourage the progress of society. We also, of course, have tresspass law and tortious interference law and other laws.

    I love the analogy of computer virus; thats basically what GM Canola is. Sony tried to insert Malware (not exactly a virus, but virus-like) code on one of their products a few years back; it invaded a good number of PCs and there was an uproar. If Sony were smoe 18 year old kid, they might get prosecuted under the various forms of ‘unauthorized access to a computer’ laws.

    The tyranny of the mob cannot overrule the rights of the individual, this comes from the Enlightenment if not before. In the modern day, a corporation like Monsanto is essentially a mob; it has millions of shareholders in it’s stock, and millions of bondholders that own it’s debt, untold numbers of employees, etc. This mob conspires to invade the property of a single individual, and perpetrate an unauthorized access of the land and a tortious interference with the business of organic non-GMO farmers.

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  2. You have a horrible comment filter. I type in a perfectly ordinary post, hit ‘submit’, and it disappears into thin air. No message, no nothing. Just gone.

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  3. Let me try again. I like the analogy between computer viruses and monsanto. It reminsd me of the time Sony tried to slip some malware into a product a few years back that was installed on PCs. There was an uproar.

    I think if you go back to the Enlightenment, when these laws were in infancy, you can find some principles. The ‘tyranny of the mob’ cannot overrule the rights of the individual in every circumstance. In modern times, the mob is the corporation. It has millions of shareholders, bondholders, thousands of employees, vendors, suppliers, etc. It’s rights do not outweigh the rights of the individual to be at liberty in their person and their posessions. I would suggest that tresspass law could be used against their ‘computer virus’-like crops, just as tresspass law is used against computer crackers who invade computer systems.

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  4. Here is attempt 3 to get through the comment filter.

    1. Nice analogy between c. v’s and Gm crops.

    2. Tresspass law could be used against GM crops as it is against cv’s ?

    3. The Enlightenment – tyranny of the mob (the corporation and its shareholders) cannot overrule the rights of the individual.

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  5. This is attempt four to get through the comment filter. I will crush my prose down to sub-literate English in an attempt to make it through the invisible shield here.

    I liked your analogy with infectious agents. The rule of the mob / majority doesnt outweight the rights of man. Modern companies might be considered as ‘mobs’.

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