# Court rules breast cancer gene patents invalid. What does this mean for GM foods? **URL:** \ **Category:** Great Debates\ **Created:** [March 30, 2010, 4:18pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342 "2010-03-30T16:18:04Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 30, 2010, 8:00pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/21 "2010-03-30T20:00:13Z")
> [@Ogre](#): > > Also, I see what you did there, Mr. Lawyer. Most suits have ended out of court, with a non-disclosure agreement, so there wouldn’t have been a “court victory” to cite. Here’s one that went all the way to the Supreme Court. Monsanto had won in all the lower courts, and the [Supremes declined](http://www.bizjournals.com/stlouis/stories/2008/01/07/daily16.html)to review. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2010, 8:01pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/22 "2010-03-30T20:01:34Z")
> [@Ogre](#): > > Percy Schmeiser. The Canadian court was convinced by expert testimony that seed probably would not have dispersed as far into his fields as it did under normal conditions of being blown off a passing truck, and that these sources would not reasonably explain the concentration of RR plants in his fields. > > However, I do not believe they considered the matter of pollination, which is a naturally-occurring phenomenon. Really? Schmeiser forgot to mention pollination during his defense? > [@](#): > > Essentially, Monsanto won the suit on the strength of the fact that plants with the RR gene were found on his property, but they never established that Schmeiser put them there (instead, they went into some detail about an anonymous tip that Schmeiser’s field-hand had been seen putting a bag of seed into “an old Ford truck”, and ruled that he “ought to have known” it was patented seed. What nonsense.) I don’t have easy access to Canadian court decisions, so I’ll rely on you to provide the specifics. But unless the Canadian system has some dramatic differences from our own, then Schmeiser had every chance to tell his side of the story, and Monsanto had to win by a preponderance of the evidence – not fifty-fifty, in other words; they had to overcome a presumption in favor of farmer Schmeiser. > [@](#): > > Also, I see what you did there, Mr. Lawyer. Most suits have ended out of court, with a non-disclosure agreement, so there wouldn’t have been a “court victory” to cite. But I did mention the fact that they’ve filed a mere 140 lawsuits on this issue in thirteen years, total. That doesn’t suggest a massive onslaught of litigation. ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 8:04pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/23 "2010-03-30T20:04:21Z")
> [@kunilou](#): > > Here’s one that went all the way to the Supreme Court. Monsanto had won in all the lower courts, and the [Supremes declined](http://www.bizjournals.com/stlouis/stories/2008/01/07/daily16.html)to review. Yeah. According to Monsanto, there have only been 9 trials, all of which they have won. I haven’t read all the decisions, but the Schmeiser case appears to have some biological flaws (pollination). However, they have sued over 150 farmers, most of which were settled out of court. ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 8:15pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/24 "2010-03-30T20:15:53Z")
> [@Bricker](#): > > Really? Schmeiser forgot to mention pollination during his defense? My mistake. They did consider pollination, albeit in an abbreviated, incomplete manner: > [@](#): > > In early 2000 Dr. Downey arranged for a grow-out test of the sample provided by Mr. Mitchell from seeds retained from the 1997 sample. Mr. Schmeiser and his counsel were invited to be present at commencement of the test. There were differences in the testimony of Dr. Downey and Mr. Schmeiser about the presence of cleaver seeds among the sample seeds. All seeds in the sample provided to Dr. Downey were planted. The grow-out test of the seeds resulted in about 50% of the seeds germinating. The subsequent application of Roundup herbicide left surviving all of the plants which germinated from the seed, demonstrating they were glyphosate tolerant. This led Dr. Downey to conclude that the seeds provided to him from the 1997 sample taken of plants growing along the road allowances of fields 2 and 5, demonstrated that the canola plants growing there were not the result of pollen movement into those fields, or out crossing between glyphosate-resistant and susceptible plants. Rather, in his view, the high percentage of glyphosate-tolerant plants, among those which had germinated, indicated they were grown from commercial Roundup Ready canola seed. Random genetic mixing of susceptible plants with resistant plants would not necessarily lead to susceptible plants. It depends on the gene expression. And in any case, hybridization happens in nature all the time, with unpredictable genetic results. > [@](#): > > I don’t have easy access to Canadian court decisions, so I’ll rely on you to provide the specifics. But unless the Canadian system has some dramatic differences from our own, then Schmeiser had every chance to tell his side of the story, and Monsanto had to win by a preponderance of the evidence – not fifty-fifty, in other words; they had to overcome a presumption in favor of farmer Schmeiser. I have no insights as to the nature of the Canadian legal system. > [@](#): > > But I did mention the fact that they’ve filed a mere 140 lawsuits on this issue in thirteen years, total. > > That doesn’t suggest a massive onslaught of litigation. If only these lawsuits were the sum total of the story. ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [March 30, 2010, 8:31pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/25 "2010-03-30T20:31:19Z")
> [@Smeghead](#): > > I think it’s worth noting that Monsanto’s (arguably) abusive behavior regarding their products is a separate issue from the creation and patenting of those products. The fact that the people who own these patents are assholes shouldn’t, ideally, enter into the debate about whether these patents are justifiable. As with nearly any law, there’s certainly room for abuse, and it behooves us to try to prevent these abuses when possible, but surely the possibility shouldn’t invalidate the entire concept. > > As for the issue of patenting genes, I find myself on the fence. I can see both sides’ points. That’s obviously not a terribly useful point of view to articulate in a debate, which is why I’ve stayed out of it until now. I will say that it’s easy to carry it to ridiculous extremes in other, non-agribusiness ways, as well: > > I used to work in a lab where we tested for mutations in the _apoE_ gene. These mutations have been shown to correlate to two separate conditions: Alzheimer’s disease and high cholesterol. The Alzheimer’s link was discovered privately and patented. The cholesterol link was discovered publicly, and no patent applies. Because of this, we were only able to test patients who were interested in their cholesterol status. The reports we sent back could only talk about that side of things, despite the fact that the _exact same_ information was also informative of the patient’s Alzheimer’s risk. If they were worried about that, they would have had to go pay another institution a no doubt higher price to run the exact same test that we did and give them the exact same result. Bizarre. We used to have doctors calling us, asking us, “This is the same mutation as is implicated in Alzheimer’s, right?” And we’d have to tell them that we couldn’t legally say anything about that, despite the fact that it’s all out in the literature. To me, there are two separate issues here. One is what is patentable. To me it is only things that you create. You can patent a wing design you create, you cannot patent a hummingbird wing. You could patent a specific process using a hummingbird wing. From what you are saying it sounds like an abuse of the patent system. They did not patent a test for the gene (otherwise you would have to pay them to use the test for cholesterol purposes) they patented the knowledge of the gene’s operation. That is ridiculous. The second is how patents are used. The Monsanto model may be one thing to look at, but the most egregious abuse I have heard of was a pharmaceutical company that patented a genetic test that would predict if one of their drugs would be affective. They did not offer the test nor would they let anyone else offer the test. Basically the point of the patent was to prevent doctors from using the test to eliminate their drug as an option for patients that would not be helped by it. That is just as evil as an oil company buying the patent to better battery just to stymie the development of electrical cars would be. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [March 30, 2010, 8:34pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/26 "2010-03-30T20:34:33Z")
> [@Ogre](#): > > Yeah, your argument is a fairly standard one. Unfortunately, it goes quite a bit deeper than that. Monsanto is working very hard to establish a horizontal monopoly on seed sales in the US heartland. If only we had laws to deal with with monopolies. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 30, 2010, 8:45pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/27 "2010-03-30T20:45:05Z")
> [@Whack-a-Mole](#): > > Seems to me a GM-food is patentable. It is not “discovered” but rather invented. Nature did not produce it, some company did. That looks like the long and the short of it, so I don’t see any kind of real parallel to Monsanto or companies that make genetically modified crops. Monsanto makes pesticide and then genetically engineers plants that won’t be harmed by the pesticide. (In some order.) This company had patents on specific sections of naturally occurring human genes - they’re not the only company with patents like this, by the way - and it created a test that looks for mutations on those genes. I assume if another company had tried to market a test that looked for the same mutations, they would have sued. As far as Monsanto goes, the practice of suing farmers sounds abusive on the face of it, but companies often go to absurd extremes in the name of protecting their patents so nobody can claim they should be in the public domain. This may be another one of those instances. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [March 30, 2010, 8:57pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/28 "2010-03-30T20:57:39Z")
> [@Ogre](#): > > This places humans and the natural world in an untenably precarious bondage to corporate interest, and I’d love to see Monsanto’s back broken, free market be damned in this case. The free market has nothing to do with this–a patent is a government-enforced monopoly. Once the patent has expired, then we will see how the free market handles it. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 30, 2010, 9:01pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/29 "2010-03-30T21:01:07Z")
> [@Marley23](#): > > As far as Monsanto goes, the practice of suing farmers sounds abusive on the face of it, but companies often go to absurd extremes in the name of protecting their patents so nobody can claim they should be in the public domain. This may be another one of those instances. I’m kind of curious how Monsanto finds out about these farmers. Does Monsanto have people driving around and running into fields to steal corn (or whatever) for genetic testing? Wouldn’t that be against the law? ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 9:03pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/30 "2010-03-30T21:03:41Z")
> [@Whack-a-Mole](#): > > I’m kind of curious how Monsanto finds out about these farmers. Does Monsanto have people driving around and running into fields to steal corn (or whatever) for genetic testing? Wouldn’t that be against the law? Chiefly anonymous tips, from what I gather. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 30, 2010, 9:07pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/31 "2010-03-30T21:07:07Z")
[Here’s Monsanto’s answer to that.](https://www.monsanto.com/monsanto_today/for_the_record/monsanto_farmer_lawsuits_followup.asp) > [@](#): > > Often, honest citizens will report those who break the law. The same is true for patent infringement involving saved seed. The vast majority of farmers respect patent laws and honor their agreements to abide by that law. When one farmer sees another farmer saving patented seed, they will often report them. Many of the tips Monsanto gets about farmers saving patented seeds come from other farmers in the same community. > > Usually, cases come to us when someone reports they believe seed is being saved illegally. Monsanto’s attorneys look into these allegations and may have a licensed private investigator look into the facts. [They do take samples, but they say it’s not stealing.](https://www.monsanto.com/monsanto_today/for_the_record/troy_roush.asp) > [@](#): > > Monsanto does not trespass in investigating patent infringement complaints. We don’t need to. The only time we need to go onto private property during an investigation (other than to meet with the farmer) is to take samples. We do this only by permission of the farmer or under court order. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [March 30, 2010, 9:08pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/32 "2010-03-30T21:08:56Z")
> [@redtail23](#): > > Except for the fact that Monsanto GM products have repeatedly contaminated other crops. It’s a little hard to use regular, ordinary corn when you can’t find any because it’s all been cross-pollinated by GM products. > [@Ogre](#): > > In addition, they are actively suing farmers for incidental invasions by GM crop plants (this is defensible under the most narrow possible reading of the law, but Monsanto and everybody else knows that the invasions are not the result of the farmers actually planting the patented plants, but of cross-pollination with GM plants.) > [@begbert2](#): > > I also think that there really ought to be some clear legal defense against cross-pollination contaminating your plants - if the government did that it would be entrapment or something, wouldn’t it? Creating a product that spread by itself to intrude on their property and basically plant the evidence of the crime on them, and then prosecuting them for the invasion that they had nothing to do with. This claim and argument has arisen in every thread on the topic. Unfortunatley, I have never seen the particulars of an actual lawsuit that supported this claim. Every time the citation makes it into a thread, the particulars of the case tend to indicate a different scenario such as that the “innocent” farmer had carefully harvested the cross-pollinated crops rather than selling them with the rest of his grain and had re-used the seed created from those rows to his own benefit. Much like the claim that Wal-Mart “frequently” goes into a town and kills the competition with low prices, then closes/consolidates its stores into neighboring towns, there does not appear to be any evidence that the claims are based in fact rather than based in an anti-big company attitudes. (Wal-Mart and Monsanto are both large comapnies with a history of unethical practices, but the claims on these specific issues have not yet been supported by facts.) ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 9:09pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/33 "2010-03-30T21:09:40Z")
> [@Marley23](#): > > [Here’s Monsanto’s answer to that.](https://www.monsanto.com/monsanto_today/for_the_record/monsanto_farmer_lawsuits_followup.asp) > > [They do take samples, but they say it’s not stealing.](https://www.monsanto.com/monsanto_today/for_the_record/troy_roush.asp) But they, by their own admission, don’t do so themselves. They hire private investigators. Can they guarantee that their agents follow published corporate policy? ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 9:14pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/34 "2010-03-30T21:14:13Z")
> [@tomndebb](#): > > This claim and argument has arisen in every thread on the topic. > > Unfortunatley, I have never seen the particulars of an actual lawsuit that supported this claim. Every time the citation makes it into a thread, the particulars of the case tend to indicate a different scenario such as that the “innocent” farmer had carefully harvested the cross-pollinated crops rather than selling them with the rest of his grain and had re-used the seed created from those rows to his own benefit. > > Much like the claim that Wal-Mart “frequently” goes into a town and kills the competition with low prices, then closes/consolidates its stores into neighboring towns, there does not appear to be any evidence that the claims are based in fact rather than based in an anti-big company attitudes. (Wal-Mart and Monsanto are both large comapnies with a history of unethical practices, but the claims on these specific issues have not yet been supported by facts.) Ah, but I believe the burden of proof should not be on the farmer. The assumption should be that organisms will act the way that organisms act (they produce pollen, which is spread to other plants, resulting in reproduction). I quoted the portion of the Canadian court opinion that deals with how they determined that it was not cross-pollination, but the methodology and result interpretation are not clear at all. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 30, 2010, 9:14pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/35 "2010-03-30T21:14:46Z")
> [@Ogre](#): > > They hire private investigators. Can they guarantee that their agents follow published corporate policy? If the investigators are authorized to take samples, it isn’t stealing. Could they be taking samples at other times? I guess so. That might be more trouble for them that it’s worth, but I don’t know. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [March 30, 2010, 9:18pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/36 "2010-03-30T21:18:15Z")
If you create a useful gene from scratch (plausible, though I don’t know if it’s actually been done), you can patent the gene. If you find a gene one place in nature and discover that it would be useful transplanted into some other organism, you can patent the gene + organism combination, but that wouldn’t stop someone from using the same gene in some other way. And in any event, you can patent a process to isolate a gene, or to detect it, or to transplant it, which would stop others from using that process, but would still allow them to isolate, detect, or transplant it in some other way. It’s ludicrous, though, to claim that you can discover an already-existing gene and then patent the gene itself, and it’s nice to finally see some court decisions saying so. ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 9:21pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/37 "2010-03-30T21:21:13Z")
> [@Marley23](#): > > If the investigators are authorized to take samples, it isn’t stealing. Could they be taking samples at other times? I guess so. That might be more trouble for them that it’s worth, but I don’t know. It may not be stealing, but if the various complaints are to be believed, it may be trespassing. If agents acting on behalf of Monsanto are not following _Monsanto’s_ published policy (permission of farmer or court order), but are getting samples in other ways, then Monsanto has plausible deniability AND the samples. I don’t want to sound like a conspiracist, but Monsanto does not have a wonderful history of shooting straight with the public. See also: Anniston, Alabama PCB controversy. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [March 30, 2010, 9:24pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/38 "2010-03-30T21:24:20Z")
> [@Ogre](#): > > It may not be stealing, but if the various complaints are to be believed, it may be trespassing. If agents acting on behalf of Monsanto are not following _Monsanto’s_ published policy (permission of farmer or court order), but are getting samples in other ways, then Monsanto has plausible deniability AND the samples. Maybe they’re trespassing and maybe they aren’t. I’m not going to assume anything about their conduct. But I don’t think it affects the gene issues. ---
**Author:** ![Ogre](https://avatars.discourse-cdn.com/v4/letter/o/ecb155/32.png) [@Ogre](https://boards.straightdope.com/u/Ogre)\ **Post date:** [March 30, 2010, 9:29pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/39 "2010-03-30T21:29:12Z")
> [@Marley23](#): > > Maybe they’re trespassing and maybe they aren’t. I’m not going to assume anything about their conduct. But I don’t think it affects the gene issues. Surely not. But the door was opened… ---
**Author:** ![jk1245](https://avatars.discourse-cdn.com/v4/letter/j/49beb7/32.png) [@jk1245](https://boards.straightdope.com/u/jk1245)\ **Post date:** [March 30, 2010, 10:46pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/40 "2010-03-30T22:46:57Z")
> [@Chronos](#): > > If you create a useful gene from scratch (plausible, though I don’t know if it’s actually been done), you can patent the gene. If you find a gene one place in nature and discover that it would be useful transplanted into some other organism, you can patent the gene + organism combination, but that wouldn’t stop someone from using the same gene in some other way. And in any event, you can patent a process to isolate a gene, or to detect it, or to transplant it, which would stop others from using that process, but would still allow them to isolate, detect, or transplant it in some other way. It’s ludicrous, though, to claim that you can discover an already-existing gene and then patent the gene itself, and it’s nice to finally see some court decisions saying so. Even more ridiculous, one company can have a patent on the DNA sequence of the gene, while another has the patent on the corresponding protein sequence. Which is patently (heh, see what I did there?) absurd, since if you have one, then the other is a given (or at least, the DNA sequence is a functional given if you have a protein sequence). On top of that During my days doing FTO analysis on genes we were looking to express, I would also find patents on sequences of genes that were published years prior. The whole gene patent area is a mess. It might be best to just invalidate all patents on naturally occurring gene sequences. [Previous page](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342.md?page=1) [Next page](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342.md?page=3)