# 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:** 10\ **Page:** 4
**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 31, 2010, 9:14pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/61 "2010-03-31T21:14:24Z")
> [@acsenray](#): > > Then maybe you shouldn’t have tried to drive-by them. Wasn’t a “drive-by”. I used it as an example. You were down for the hijack. If you want to discuss it start a new thread. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 1, 2010, 12:40am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/62 "2010-04-01T00:40:37Z")
The Schmeiser decision can be found in its entirety [here](http://decisions.fct-cf.gc.ca/en/2001/2001fct256/2001fct256.html). Unless the recitation of the fact finding in the decision is badly askew, it’s pretty clear that Schmeiser intentionally propagated canola he knew to be Monsanto’s patented variety. In '97, more or less by accident, he discovered while spraying Roundup around some power poles that some canola plants survived. So he sprayed several acres of that canola field with Roundup, and two-thirds or so survived. Then he harvested that particular plot and kept the seed from it separate, and used it to seed in '98. How the stuff came to be in his field in '97 is more or less immaterial. There’s a variety of possibilities, but canola is notoriously prone to “volunteering” - which is to say that any scattered seed is likely to germinate next spring, regardless of what else is done to the field in question. It’s not particularly uncommon to see a field of wheat or whatever with thick strips of canola growing, marking the locations of swathes from the previous fall that were subject to a heavy rain or some such which cracked open the seed pods. If Monsanto had sued him for having grown the canola in '97, which he discovered by accident, then I’d be in complete agreement that it was a load of bullshit. But they sued him for growing canola from the seed he’d saved in '97, which he knew to be Roundup Ready[sup]TM[/sup]. He knew perfectly well what he was doing. I suspect he thought that since he’d never signed an agreement with Monsanto, as anyone who purchases from them must, that he was free to do as he pleased with the RR canola that he’d discovered growing in his field. But Monsanto’s seed wasn’t just protected by the sales contracts, but also by the patent, and so he was infringing. And for the record, I’m no fan of Monsanto’s, though I’m not opposed to GM crops. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [April 5, 2010, 1:29am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/63 "2010-04-05T01:29:17Z")
> [@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.) I have seen several programs on the subject, i believe including 60 minutes. In some cases if an organic farmer was being contaminated, his product was being hurt. They still lost. [Monsanto - Wikipedia](http://en.wikipedia.org/wiki/Monsanto) here is a Wiki with the cases. ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [April 5, 2010, 3:02am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/64 "2010-04-05T03:02:56Z")
> [@Gorsnak](#): > > But Monsanto’s seed wasn’t just protected by the sales contracts, but also by the patent, and so he was infringing. Thank you for your reporting on the decision. This leaves me with one hypothetical: if it was okay for the farmer to use RoundUp on his field in 1997, isn’t a farmer typically typically always free to use retained seed to replant his field the next year? If Monsanto’s products contaminated his field such that he was unable to retain seed for the next year without violating Monsanto’s patent on RoundupReady plants, hasn’t Monsanto done the farmer some material harm in forcing him to not retain seed and buy it next year? Obviously, his next batch of seed doesn’t need to come specifically from Monsanto, but he’s being forced to make capital outlays he could have otherwise avoided. Recent case history has demonstrated that it’s hard to successfully sue Monsanto for contaminating your crops with their patented genes, so how is this fair? ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 5, 2010, 5:14am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/65 "2010-04-05T05:14:58Z")
> [@threemae](#): > > Thank you for your reporting on the decision. This leaves me with one hypothetical: if it was okay for the farmer to use RoundUp on his field in 1997, isn’t a farmer typically typically always free to use retained seed to replant his field the next year? If Monsanto’s products contaminated his field such that he was unable to retain seed for the next year without violating Monsanto’s patent on RoundupReady plants, hasn’t Monsanto done the farmer some material harm in forcing him to not retain seed and buy it next year? Obviously, his next batch of seed doesn’t need to come specifically from Monsanto, but he’s being forced to make capital outlays he could have otherwise avoided. > > Recent case history has demonstrated that it’s hard to successfully sue Monsanto for contaminating your crops with their patented genes, so how is this fair? Well, according to what’s said in the decision, Schmeiser only sprayed a small strip along the road beside one of his fields - some five acres out of a couple thousand. And reportedly the canola that survived the Roundup was mostly along the edge of the field, tapering off fairly rapidly. So there was lots of non-Roundup Ready crop to keep seed from. Moreover, if Schmeiser hadn’t sprayed that strip with Roundup, most likely Monsanto would never have heard about him, and he could have continued on his merry way without a bother. Monsanto was tipped off in this case, and the only way anyone would know that Schmeiser was growing Roundup Ready canola would be if someone observed him spraying that strip (highly, highly unusual to spray healthy non-GM crop with Roundup) or he or his hired help talked about what they did. The latter is my guess, but who knows. Anyways, Schmeiser’s troubles were the result of him intentionally cultivating RR canola. If he’d just been accidentally cultivating it, I strongly suspect things would have come out differently. I believe right now, pretty much all canola contains some (mostly small) percentage of genetically modified stock. So pretty much everyone not buying Monsanto seed is technically infringing their patent. But unless you intentionally produce yourself some pure GM seed (wouldn’t be hard, make a small plot somewhere, spray it, take the survivors and use them to build up a stock of seed) and then grow it on a large scale and use glyphosphate for weed control, I don’t think Monsanto is likely to come after you. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [April 5, 2010, 2:09pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/66 "2010-04-05T14:09:43Z")
> [@Gorsnak](#): > > The Schmeiser decision can be found in its entirety [here](http://decisions.fct-cf.gc.ca/en/2001/2001fct256/2001fct256.html). > [@](#): > > A chimeric plant gene which comprises: > > (a) a promoter sequence which functions in plant cells; > > (b) a coding sequence which causes the production of RNA, encoding a chloroplast transit peptide/5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) fusion polypeptide, which chloroplast transit peptide permits the fusion polypeptide to be imported into a chloroplast of a plant cell; and > > (c) a 3’ non-translated region which encodes a polyadenylation signal which functions in plant cells to cause the addition to polyadenylate nucleotides to the 3’ end of the RNA; > > the promoter being heterologous with respect to the coding sequence and adapted to cause sufficient expression of the fusion polypeptide to enhance the glyphosate resistance of a plant cell transformed with the gene. > > 1. > > ``` > A chimeric gene of Claim 1 in which the promoter sequence is a plant virus promoter sequence. > > ``` I don’t get their claims. How can you patent a gene? Masanto didn’t make the EPSPS gene or the resultant protein. > [@](#): > > Thus a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbour’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell. If some of Masanto’s magic seed drifts into your land, by wind or bird shit, you are cupable in court if it is grown and used. How absurd. Just because there is a “patented gene” in a cell doesn’t prevent the plant (you know, an organism) from dispersing seed or pollen. Someone ought to beat that Judge over the head with a science textbook. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 5, 2010, 2:32pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/67 "2010-04-05T14:32:18Z")
Creating a genetically modified organism is not necessarily unanalogizable to inventing a new machine. Widget A inserted into Slot B produces Useful Effect C. That would have happened no matter who did it, but we decided that the guy who does it first gets a monopoly for 20 years. That’s the essence of a patent. The defendants aren’t being held liable for something that happened on accident. They’re being held liable for intentionally taking advantage of drift in order to practice Monsanto’s patents. ---
**Author:** ![adhay](https://avatars.discourse-cdn.com/v4/letter/a/ecd19e/32.png) [@adhay](https://boards.straightdope.com/u/adhay)\ **Post date:** [April 6, 2010, 11:16am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/68 "2010-04-06T11:16:33Z")
> [@Whack-a-Mole](#): > > Admittedly I do not know the particulars in this case. As presented in this thread though I am hard pressed to see the SCOTUS overturning this ruling. … Oh? > **[Monsanto's High Level Connections to the Bush Administration - SourceWatch](https://www.sourcewatch.org/index.php?title=Monsanto%27s_High_Level_Connections_to_the_Bush_Administration)** > [@](#): > > While much of the controversy over Monsanto has centered on its products and technology, many have raised concerns about the company’s high level connections to the administration of George W. Bush. > > “ **The connections between Monsanto and the new Bush administration are also very solid. G.W.’s pop, Bush Sr. appointed Clarence Thomas, a Monsanto attorney, to the Supreme Court. Thomas played a key role in the selection of G.W. as president.** John Ashcroft, the current attorney general, was the top recipient of Monsanto contributions when he recently tried to get reelected to the U.S. Senate. Donald Rumsfeld, the current secretary of defense, was president of Searle Pharmaceuticals, now owned by Monsanto. Tommy Thompson, now the secretary of Health and Human Services, helped the biotech industry by getting the state of Wisconsin to set up a $37 million biotech zone there. He received $50,000 from the biotech industry for his reelection campaign. The current secretary of Agriculture, Ann Veneman, was on the board of directors of Calgene Pharmaceuticals, an affiliate of Monsanto. Recently, Linda J. Fisher, a former Monsanto official, was nominated by Bush to be second-in-command at the EPA. She was Monsanto’s representative in Washington from 1995 to 2000 and coordinated the company’s strategy to blunt resistance to genetically modified food” [1] See also GM lobby takes root in Bush’s cabinet. Other high level government connections include Stansfield Turner, former Director of the CIA and member of the Monsanto Board [2] and Earle H. Harbison former president of Monsanto and CIA officer for 19 years [3]. For still more connections see [4]. See also Revolving Doors. **bolding mine** ---
**Author:** ![ShibbOleth](https://avatars.discourse-cdn.com/v4/letter/s/848f3c/32.png) [@ShibbOleth](https://boards.straightdope.com/u/ShibbOleth)\ **Post date:** [April 6, 2010, 11:33am UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/69 "2010-04-06T11:33:33Z")
> [@Ogre](#): > > So far, Monsanto is suing the pants off of them, successfully. The farmers usually settle out of court, because they can’t afford a legal battle with a corporation like Monsanto. I can’t believe that no lawyer has been crafty enough yet to bring a class action suit against Monsanto for attacking their natural crops. A farmer can’t beat Monsanto. A whole bunch of them probably could. ---
**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:** [April 6, 2010, 6:05pm UTC](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342/70 "2010-04-06T18:05:27Z")
So, this farmer discovered he had some plants on his property that had a desirable trait, and he saved seeds from those plants to grow more of them. There’s a word for that behavior, but it’s not “theft”. The word for that is “agriculture”. That’s how we got canola (and almost every other food crop we have) in the first place. [Previous page](https://boards.straightdope.com/t/court-rules-breast-cancer-gene-patents-invalid-what-does-this-mean-for-gm-foods/534342.md?page=3)