New at Reason

Tim Cavanaugh | December 8, 2004

Ronald Bailey finds a lot of chaff in Greenpeace's great wheat triumph.

Comments

|12.8.04 @ 2:45PM|#

Looks like Greenpeace is grasping at straws (er, wheat, I guess).

|12.8.04 @ 2:46PM|#

The Parents Television Council post from the other day has me wondering -- what percentage of GMO complaints involve Greenpeace?

Warren|12.8.04 @ 3:00PM|#

"...a band of scientific illiterates who use Gestapo tactics..." - Greenpeace Co-Founder, Patric Moore, describing his former organization.

Pretty much sums 'em up I'd say

|12.8.04 @ 3:03PM|#

So when you strip away the minutae (calling it a "Monsanto" patent, calling it a patent, calling a variety of wheat that gains its notable characteristic from an Indian strain " an Indian wheat," Greenpeace taking credit for the decision when the biotech company assures us they had nothing to do with the decision), we're left with one real issue. Did Monsanto and its successor have the right to claim patent(like) protection for adding the soft-milling gene to a European strain?

Let's say I invent a doohickey. You take that doohickey, put in on wheels, and file for patent protection for your wheeled doohickey. My question is, where's my royalties? That's my doohickey that's making you money. Let's face it, it's the presence of the soft milling gene that makes the GM wheat worth protecting (or not in this case, maybe, but the prinicple is the same). I say, you've got no right to sell that doohickey without my permission, or to punish others who want to use that doohickey. It's not yours.

Now, there is no identified owner of the soft-milled wheat. But that means it is in the public domain. If you want to record a song with a Bo Didley beat, go right ahead. But don't try to file any lawsuits against the next guy to record a song with a Bo Didley beat.

|12.8.04 @ 3:08PM|#

Good post. I skimmed both the Greenpeace press release and the revoked patent. (Easy to do: go to ep.espacenet.com, click on "publication number search," and plug in the number in the form).

Unilever, the original patentee, took an Indian wheat strain and crossbred it with a European wheat strain. They appeared to want to combine the better-baking qualities of the Indian wheat with some desired property of the European wheat. No biotech required; horticulturalists have been doing this for centuries.

I love the line from Greenpeace, "Monsanto, better known as the world?s largest trader in genetically engineered plants." Funny, I thought it was better known as Monsanto.

Hey, it gets better! Check the "Legal Status" of the patent at this European Patent Office webpage (http://v3.espacenet.com/legal?DB=EPODOC&IDX=EP0445929&F=0&QPN=EP0445929). The patent lapsed in the EPO countries starting in November 2003, with many lapsed by January 2004 -- before Greenpeace filed its opposition! It must be easy to get a patent "revoked" if you file your request for revocation after the patent has lapsed. For Monsanto to let it lapse suggests the patent was so worthless to them they didn't want to spend a few tens of thousands of dollars to bring it into force in the EPO countries. Yup, that's a devious biopirate for you.

Doesn't Greenpeace have some real environmental activism to do?

Warren|12.8.04 @ 3:11PM|#

The doohicky is public domain, I put it on wheels and get a patent, you come along and add make widgets out of my wheeled doohicky, I demand payment and joe feigns confusion and outrage.

|12.8.04 @ 3:17PM|#

joe said: Let's say I invent a doohickey. You take that doohickey, put in on wheels, and file for patent protection for your wheeled doohickey. My question is, where's my royalties? That's my doohickey that's making you money.

If you didn't patent that doohickey, and you didn't disclose it to me under an agreement wherein I promised not to use your doohickey, then you're not entitled to any royalties, at least under today's intellectual property laws.

If you did have a patent on your doohickey, then I'd either need to pay you for a license or take my chances in court.

joe said: I say, you've got no right to sell that doohickey without my permission, or to punish others who want to use that doohickey. It's not yours.

I'm not selling the doohickey--I'm selling the wheeled doohickey. If someone out there uses your doohickey, without wheels, I can't touch them; but if you don't have a patent, you can't either.

joe said: Now, there is no identified owner of the soft-milled wheat. But that means it is in the public domain.

"Public domain" means I can't get a patent on soft-milled wheat per se. But if I can persuade a patent office that, despite the existence of soft-milled wheat, wheeled soft-milled wheat is novel and non-obvious, then I can get a patent.

|12.8.04 @ 3:38PM|#

joe: I don't think Ronald is arguing about property rights here, merely pointing out how silly Greenpeace claims can be.

|12.8.04 @ 3:48PM|#

Raymund, "If you didn't patent that doohickey, and you didn't disclose it to me under an agreement wherein I promised not to use your doohickey, then you're not entitled to any royalties, at least under today's intellectual property laws."

So what it comes down to is, the Indian farmers who created the soft-milled wheat four thousand years ago didn't file a patent on it. Therefore, the Europeans can not only utilize that wheat without permission, but put a patent on a product made from it, and use that patent to deny those same Indian farmers the use of the product. This strikes me as no different from European settlers being able to steal land that American Indians held in common, on the theory that the American Indians didn't write up deeds.

So if, for example, those farmers decided to crossbreed their legacy strain with European wheat using their old fashioned crossbreeding techniques, they would not have the right to do so, because the Europeans filed a patent? That's not right. Though they may not have the paperwork, the traditional farmers have a claim on that strain of wheat that should, at least, allow them a special exemption from the Europeans' patent protection.

|12.8.04 @ 3:51PM|#

Lowdog, I'm going to do Bailey the courtesy of assuming he has a loftier target in mind than "Political Activist Group Overstates Its Case."

|12.8.04 @ 3:56PM|#

joe, I think you need to give your clairvoyant powers a rest. They're not working very well lately.

|12.8.04 @ 4:03PM|#

joe: why? Reason seems to have posts and articles of that nature all the time. Maybe you're just being defencive?

|12.8.04 @ 4:07PM|#

But if I can persuade a patent office that, despite the existence of soft-milled wheat, wheeled soft-milled wheat is novel and non-obvious, then I can get a patent.

I would say that if you could convince an overburdened patent examiner, through subterfuge, lies, or even telling the truth when the examiner doesn't understand the patent, that the "invention" is "novel and non-obvious," then you would get a patent. You can then start suing everyone who does something similar, and the burden of proof is on the defendant to show the patent is invalid. Current patent law, as it has been implemented in the U.S. recently, sucks.

I want to write software, just as a hobby, for my own use, not to make any money, or "steal" someone else's work. I cannot legally do that, mainly because just about every algorithm has been patented, or has a patent pending. I'm sure I could write a patent application for the "Hello World!" program with the right amount of jargon to make it look like a novel invention and then get awarded a patent. Especially if the examiner is not a computer programmer. Fun would commence when I then sue every university in the country with a computer science curriculum to not use my invention to teach computer science, and pay me back royalties for its use over the previous few years. I wouldn't sue for much, certainly much less than the cost of a patent defense case, but with enough defendents, I would probably make enough to pay off my house and retire. This is good? Bleaaahhh.

|12.8.04 @ 4:07PM|#

joe said: So what it comes down to is, the Indian farmers who created the soft-milled wheat four thousand years ago didn't file a patent on it. Therefore, the Europeans can not only utilize that wheat without permission, but put a patent on a product made from it, and use that patent to deny those same Indian farmers the use of the product.

Yes, but note: 1) the "product" is a different strain of wheat. Let's call it wheeled soft-milled wheat. The Indians are planting plain old soft-milled wheat. The patent doesn't cover plain old soft-milled wheat. The Indians can do what they want with their plain old soft-milled wheat.

2) the patent was ONLY in force in Europe. Greenpeace may be right that counterparts are in force in the US and Australia. There's no evidence the patent was in force in India. If a patent isn't in force in India, Indians are off the hook.

joe said: This strikes me as no different from European settlers being able to steal land that American Indians held in common, on the theory that the American Indians didn't write up deeds.

The analogy doesn't work. If the Europeans took land without reducing the ability of American Indians to use it, built a new continent in the ocean with the land, and barred American Indians from visiting the new continent, then the analogy would work.

joe asked: So if, for example, those farmers decided to crossbreed their legacy strain with European wheat using their old fashioned crossbreeding techniques, they would not have the right to do so, because the Europeans filed a patent?

If the patent isn't in force in India, they would have the right to make the identical crossbred strain, and Unilever/Monsanto couldn't do a thing about it. It is true that the published European patent would prevent the Indian farmers from getting their own patent on the same crossbred strain, but they could make and use the crossbred strain as much as they want.

joe said: That's not right. Though they may not have the paperwork, the traditional farmers have a claim on that strain of wheat that should, at least, allow them a special exemption from the Europeans' patent protection.

Again, the European patent has no legal force in India, and the European patent doesn't cover the original wheat strain even in Europe. The Indian farmers don't need a special exemption; they can grow the original wheat in India all they want. Unless Unilever/Monsanto filed for a patent in India and got it allowed, the Indian farmers can even grow the crossbred strain in India all they want.

|12.8.04 @ 4:09PM|#

I don't care much about Greenpeace, but I trust nothing from Bailey given his constant distortions and deceptions, like "[Indian farmers] can simply choose not to buy seeds from Monsanto." Tell that to Percy Schmeiser.

I'm puzzled by how a man whose main message is "let corporations do whatever they want, no matter how much it trashes individuals' freedoms" is a voice of libertarianism.

|12.8.04 @ 4:17PM|#

Shawn, I don't know much about software patents. But if you write your own piece of software for your own use, even if it were covered by someone else's patent, they have to (i) suspect that you've infringed their patent and (ii) decide the cost of their lawyer sending you a letter, etc., will be made up by the amount of royalties they could get from you.

Disclaimer: I am not a lawyer and this isn't legal advice.

|12.8.04 @ 4:17PM|#

No, Lowdog, there actually is a substantive issue buried in there.

"Greenpeace's challenge was part of its ongoing "No Patents on Life" campaign. Greenpeace objects to corporations using traditional crop varieties as sources of novel characteristics for commercial varieties. They call this "biopiracy." Greenpeace activists argue that corporations take genes from landraces and then sell improved crop varieties back to the farmers without having paid the traditional farmers for the genes they took.

Monsanto can take the genetic series of the wheat variety the Indian farmers created, and use it for their own purposes, witout paying them. But no one else can take the genetic series from the Monsanto wheat without paying Monsanto (and its successor). The Indian farmers have just as much of a claim of ownership of that genetic series than Monsanto has on that of the new wheat variety. Yet Bailey argues that the Indian farmers should have to pay Monsanto to use their wheat, while Monsanto was under no similar obligation to pay the Indian farmers for the use of the variety they pioneered.

"This is silly�because Indian farmers, or any other farmer, can simply choose not to buy seeds from Monsanto, RAGT, or anyone else and just keep growing their traditional varieties. Farmers are not stupid; they will buy only what they think will improve their yields and incomes. Farmers don't buy seeds to improve Monsanto's profits; they buy seeds to improve their own profits. The farmers weren't able to liberate the characteristic by crossbreeding or biotechnology, so seed corporations are doing them a favor by placing desired genes into superior varieties."

An illiterate street musician writes a song, which he performs on his sitar. Michael Jackson records the song, adding modern instrumentation and a guitar solo, but keeps its most distinct, recognizeable characteristics, copyrights it, and makes $100 million. Not only does he owe nothing to the original writer, by Bailey's logic, but the original writer should actually have to pay Michael Jackson to record the song, if he wants to add modern instrumentation and a solo. That's not right.

|12.8.04 @ 4:20PM|#

Luisa, didn't Schmeisser spray some of his canola with Roundup, killing off all but the few plants pollinated with Roundup-Ready pollen, then save the seeds from those plants for the basis of his next crop?

Semolina Pilchard (FKA "Sam I |12.8.04 @ 4:23PM|#

Joe, you seem to take a pretty firm stance on patent rights. So what's your take on the ongoing file-sharing/copyright battles? Are you as eager to defend the intellectual-property rights of art creators?

|12.8.04 @ 4:23PM|#

"The Indian farmers don't need a special exemption; they can grow the original wheat in India all they want."

Raymund, the extence of the patents would preclude the Indians from selling their wheat to any country in which the patent is in force, which would basically include every country wealthy enough to make export of wheat profitable. I don't think your "subsistence-only" exemption is viable.

|12.8.04 @ 4:26PM|#

Semolina, the exploitation of copyright law by media companies is a pet peeve of mine. Though the file trading aspect of the issue adds in enough variables to make my head spin.

|12.8.04 @ 4:26PM|#

joe said: the extence of the patents would preclude the Indians from selling their wheat to any country in which the patent is in force

No. The patent doesn't cover original Indian wheat. Full stop. The patent in the US, Australia, or Europe doesn't prevent sales of original Indian wheat to the US, Australia, or Europe. Full stop.

Ronald Bailey|12.8.04 @ 4:42PM|#

Luisa:

Percy Schmeiser is a convicted seed thief. See URL: http://reason.com/rb/rb040401.shtml

|12.8.04 @ 4:43PM|#

Raymund, I was referring to the hypothetical case I mentioned above, in which the Indian farmers crossbred their wheat.

Er, stop.

|12.8.04 @ 4:48PM|#

joe, in that case, yup, they'd be infringing the patent. Sorry it wasn't clear to me you were referring to the hypothetical.

|12.8.04 @ 4:50PM|#

Raymund,

What you're saying is probably true, and so long as no one but my family, friends, and I know I wrote the software, I should be safe on your first point. As to your second point, however, if a company finds out I have been distributing patented software simply because I wanted other people to be able to use it, I can't imagine it would cost a law firm more than a few hundred dollars to draft a quick letter demanding a couple thousand dollars from any infringer they find. I have heard that legal fees for patent cases can easily run into the six-figure dollar plus range, so most companies simply pay the royalty demanded, or bring out their own patent portfolio and negotiate a cross-licensing deal with the claimnant. That means it is likely that the only software that can be legally produced in this country must be done in company that can provide protection from patent lawsuits. No software programmer I know has time to both write software to solve problems, and check the USPTO to be sure that what they're writing isn't violating some patent. These days, the idea that a small group of people can legally produce software for other people to use, whether gratis or for a fee, seems highly unlikely.

|12.8.04 @ 4:52PM|#

You think Monsanto's patents are silly? Check out these: http://www.patentlysilly.com/

|12.8.04 @ 4:57PM|#

Raymund, my bad.

The conclusion I'm drawing from this is, if you accept the idea of patenting life, the fact that the Indian farmers created the soft-mill strain gives them rights to that line, even if they didn't fill out the paperwork on stone tablets in Sanskrit 3800 years before the concept of a patent was invented. They have the same claim to the line of soft-milled wheat that Monsanto has to the line of "wheeled soft-milled wheat." Good for the goose, good for the gander, and the formalistic excuses about why Monsanto's claim is greater - which boil down to paperwork - are an example of European rules based on European practices favoring Europeans, not a genuinely greater claim.

|12.8.04 @ 5:33PM|#

Shawn, how many people write shareware? Work on open-source projects? How many startups write code for clients? How many guys were on the coding team for "Half-Life?" Seems like a lot of software development is going on right now by individuals or small companies. What am I missing?

|12.8.04 @ 5:40PM|#

Ronald, forgive me for not being convinced by your pointing me to more of your one-sided writing as the "evidence" that you're right. I'm not saying I buy all of Schmeiser's story either.

Raymund, While I relied on a variety of sources when I followed the case, I'm not ready to investigate again. percyschmeiser.com would seem to present the the other side of the story.

I don't want to debate Scheiser--I should have stated my view more generally: supporting the ability of transnational corporations to patent food is proundly anti-freedom and anti-libertarian.

|12.8.04 @ 6:11PM|#

What is the basis for an Indian property claim on Nap Hal wheat? Like all wheat it is descended from an original species that was not developed by the culture now known as "India". How, then, could the Indians have acquired rights to a strain of wheat?

It seems to me that the only way to make the case that the Indians "own" Nap Hal wheat is by conceding that the act of breeding a new strain of wheat gives you property rights with regard to that wheat. But of course, that's what Monsanto did: breed a new strain of wheat. So why wouldn't Monsanto have rights to their strain of wheat?

|12.8.04 @ 6:21PM|#

Raymund,

Quite a few people and small companies are writing software, including the examples you have given. My concern, and perhaps I'm being a Chicken Little here, is that it wouldn't take much for patent holding companies to use the legal system to shut down quite a bit of the small-group software development going on. I don't trust IBM or Amazon or Microsoft or Kodak or Sun or other large patent holders telling Open Source / Free (as in speech) Software developers that what those developers are doing is ok.

I'm not a lawyer, and I haven't looked at most of the code in the Linux kernel, but I wouldn't be at all surprised to find out there are a substantial amount patented algorithms being used in that kernel. Now, if that's the case, I don't believe it's because the people who wrote those sections in the kernel were deliberately trying to "steal" someone else's work, but simply because they saw the way they did it as the best way to solve the problem at hand. They came up with their solution "independently," but that "independence" doesn't protect them from a patent lawsuit.

I don't think you've missed anything, I am only concerned that the development you've mentioned is taking place on shaky legal ground, with respect to software patents. Forgent is a company that bought a (now or soon-to-be expired) patent on a part of the algorithm that is used compress images to the JPEG format. They have been suing deep pocket companies for royalties on the software that deals with JPEG images, and may have even won a few of their cases, but I'm not sure about that. Under this kind of uncertainty, it seems your best bet is to not be too successful.

Then again, maybe I'm concerned about a lot of nothing, and if that's the case, I apologize for being so off-topic. (The original thread was about Greenpeace, wasn't it?)

|12.8.04 @ 8:09PM|#

Shawn,

Isn't one of the reasons for patent-holders' sue-happy behavior, that if they do not "vigorously defend" their patent, it will lose force? If so, I'd like the person who bought the JPEG compression patent to get in touch with me about a cheap bridge I'm trying to sell...

|12.9.04 @ 2:32AM|#

doesn't GOD have the patent not only on all sorts of wheat, but on all of nature! how dare you try to pimprove on GOD'S creations by changing them and patenting them and whatnot!

|12.9.04 @ 3:25AM|#

Isn't one of the reasons for patent-holders' sue-happy behavior, that if they do not "vigorously defend" their patent, it will lose force?

That's true for brand names and trademarks, but I'm pretty sure it's not true for patents.

|12.9.04 @ 6:08AM|#

Don't patents expire (for that matter, didn't we say that Monsanto's patent lapsed)? In that case, you can argue that Indian farmers had the original right to Nap Hal wheat, but they expired a few thousand years ago. Just like when I add wheels to the doohickey mentioned at the top of this thread, I have to pay royalties to the guy who invented the doohickey (if he has a patent), but I don't have to pay royalties to the guy who invented wheels. If Monsanto had spliced Nap Hal with a patented wheat strain, they'd need to pay royalties to the owner of that patent; but any theoretical patent on Nap Hal would have expired long ago.

|12.9.04 @ 9:21AM|#

Shawn Smith:

Actually, software isn't patented, but copyrighted. No one can copyright the "Hello, world" program except its original author, and even he would have trouble now due to its widespread use.

|12.9.04 @ 9:27AM|#

nutso fundie,

Monsanto was careful to respect GOD's rights in the matter; we sacrificed two she-rams and a bullock to Him for each ten bushels of seed we produced, which He looked favorably on and accepted as a royalty offering.

Thank you for your interest,

The Monsanto Company

|12.9.04 @ 11:40AM|#

Col. DuBois,

You are correct when you say software (actually a particular expression of an algorithm) is copyrighted, not patented. I did mention patented algorithms in my post, but I obviously didn't do it very well. One of the differences between copyright and patents are that copyright will protect the particular expression of an algorithm, in a particular computer language, whereas patents protect the algorithm itself. I.e., I might have a copyright on the C program

#include <stdio.h>
int main(void) {
printf("Hello World!n");
return 0;
}

but not the Unix shell script

#!/bin/sh
echo "Hello World!"

However, if I am granted a patent on the "Hello World!" algorithm, it doesn't matter which language it's written in; any use of that algorithm that I don't approve of is infringing, and I can be awarded damages by a court. Of course, patents last "only" twenty years in the U.S., and must be granted by the USPTO, whereas copyrights last through the life of the creator plus ninety-five years, or I believe seventy-five years after creation for contract work and don't require any kind of registration.

I believe the point of my 6:21pm post still stands--that Free / Open Source Software development is on shaky legal ground, and could be shut down by aggressively litigious companies with large patent portfolios. I hope that doesn't happen, of course, but unless the patent system in this country (and perhaps the rest of the world) changes with respect to software, I need to be careful about how I practice my hobby.

crimethink,

Here is a story from Wired about the Forgent JPEG patent:

http://www.wired.com/news/business/0,1367,63200,00.html

It looks like Sony paid the licensing fee.

|12.9.04 @ 6:55PM|#

Lo and behold, a far better description of my concerns, along with possible solutions, appears at the IEEE Spectrum website:

http://www.spectrum.ieee.org/careers/careerstemplate.jsp?ArticleId=i120204

Sorry for hijacking the thread.