Seeds
of Change:
An Evaluation of Intellectual Property Rights in GMOs
*Peter Whitfield
As the evolutionary process continues, human beings become
more obsessed with technology.
With every new invention comes a new obstacle. In essence, our attempts to make life easier often
complicate it. Take for example
the invention of the computer and internet. Businesses, governments and educational institutions now
operate with increased efficiency; data storage and encryption technology allow
rooms of documents to exist on a single disc; international communication takes
place instantly at a fraction of the cost. However, the potential amount of danger has increased as
well. Before computers and the
internet, stealing secrets, information, or other records involved breaking
into a building and finding the exact documents needed. Susceptibility to theft was limited to
a geographical area. Now a hacker
can sit halfway across the world and tap into resources through a cable. Viruses have the potential of shutting
down business, or worse, power grids and airline traffic. Now they creep into cell phones, PDAs,
and other digital devices. Society
minimizes this harm by backing up our data and immunizing our machines with
anti-virus software. Biotechnology,
on the other hand, does not offer the same quick fixes. Genetically modified organisms (GMOs)
can infect a food supply and result in havoc so great that a backup would be
the only solution. Unfortunately
rebooting farmland is not as simple as pushing a button or flipping a switch.
The growth in
popularity and use of genetically modified organisms (GMOs) sharply divides the
world community, separating those who believe GMOs represent a miracle pill for
curing hunger from those who think of them as a modern PandoraÕs Box. Unfortunately, science cannot predict
the consequences that might result from the desire to tamper with nature. Nonetheless, laws in the United States,
Canada and Europe now protect the ability to genetically alter living matter
and secure the rights to its exclusive use. Since nature endows living matter with the ability to
reproduce, these laws grant a patent holder property interest in something she
did not create (even when it freely migrates to anotherÕs land). The Federal Trial Court of Canada
recently held these patent rights superior to a farmerÕs right in his property;
a decision affirmed by the Federal Court of Appeal and the Supreme Court of
Canada.[1] This decision carries the potential of
removing a stick from the bundle of rights in property once thought to occur
naturally.
On the issue of
genetic modification, farmers and biotechnologists often disagree on the
appropriateness of creating mutant plants. This is an odd circumstance because pioneers in botany,
agriculture and plant breeding created GM crops to aid the farming
industry. Their purpose was to
design crops that could produce a consistent yield under difficult conditions
and resist pests and disease without the use of pesticides. Despite fears of mutant strains of
crops resistant to any form of growth control, scientists continue to produce
GM varieties of crops with few limits.
An analysis of GM crops, their impact on the farming industry and the effects
of genetic drift raises questions regarding the patentability of that which may
naturally reproduce itself.
In order to reconcile
the rights of a patent owner with the real property rights of a farmer, this
paper explores the law protecting patent rights in genetically modified (GM)
plants. It suggests that limits on
patenting technological advancements in GM plants should exist to prevent
adverse effects on real property rights of farmers. This conclusion, while plausible, seems to create a
paradox. It offers to protect the
farming industry through weakening patent protection for GMOs, essentially
limiting an incentive for research and development. However, weakening patent
protection does not have to result in disincentives for scientific advancement.
Part I of this paper provides an introduction to GMOs and
the tradition of farming in order to detail the relationship between GMO
manufacturers and the farming community.
Part II analyzes both U.S. and Canadian laws regulating patents and
explains how both systems protect intellectual property in living
organisms. Part III focuses on
recent court interpretations of patent protection and how other property rights
yield to them. Part IV offers a different model than the current regime in an
effort to preserve traditional property rights while safeguarding valuable land
resources.
The farming industry
is composed of complex relationships between the farmer, farming supplier and
the market for farming goods. Time
and advances in farming technology perpetually shift the roles each group
performs and the balance of power between them. Accurately portraying the tension between GMO manufacturers,
farmers and the consuming public, requires defining GMOs, examining specific
types of GMOs, describing the controversy surrounding GMOs, and understanding
the tradition of farming. This
first section will lay the foundation necessary to comprehend the role that
GMOs play in the farming industry and the subsequent shift in the law that this
addition caused.
Genetic modification
is one of the newest advancements in biotechnology. It allows scientists to create GMOs by isolating genes in
those organisms and using recombinant DNA technology to reinsert a desired gene
into the organism. [2] This modification enables the organism
to exhibit certain desirable characteristics found in other living
organisms. Using this technology,
scientists bypass the long evolutionary process by engineering ÒidealÓ variations
of living matter. These ÒnewÓ
organisms then carry the label of biotech, genetically engineered, transgenic,
or genetically modified.
Plant modification, in comparison to genetically modifying
animals, has become an increasingly uncomplicated process. In order to create a GM plant, a
scientist removes tissue samples (ÒexplantsÓ) from a host plant. Then this tissue grows in a sterile
culture while it undergoes a transformation procedure where bacteria are used
to insert the desired DNA into the tissue.[3] During this process few cells actually
transform, and even fewer possess the right gene.[4] After identifying the cells that
successfully transformed, scientists place them in a growth medium so that
differentiated plants will regenerate from transformed cells.[5]
Finally, seeds are collected from the regenerated, transformed plants and
examined for the presence of the transgene.[6] Scientists will then study the plant to
determine if the gene(s) that have been introduced actually alter the
performance or characteristics of the plant.[7] If the transformation can potentially
serve a useful purpose, the ÒcreatorÓ of the new plant may apply for a patent.
In the last few decades, genetic modification produced
amazing new varieties of organisms. Scientists created these organisms, which
include animals and bacteria, as well as plants, for many purposes. For example, genetic engineering
produced mice susceptible to cancer for research purposes[8] and new forms
of bacteria that are able to clean up oil spills.[9] It also created variations of plants
frequently used in the farming industry that are resistant to pests, drought
and herbicide. This latter group
represents the widely criticized and highly controversial group of GMOs. The most common of these plant
varieties are those dubbed ÒRound-Up Ready,Ó named for their ability to resist
the Round-Up weed killer produced by Monsanto.[10]
Round-Up is a glyphosphate based herbicide that kills plants
by inhibiting the production of an enzyme required in the production of an
amino acid that is necessary for growth and survival of many types of plants.[11] Through research and development,
Monsanto was able to successfully engineer a gene with a high tolerance to
glyphosphate. It then inserted
this gene into the DNA of various types of food crops such as corn, canola and
soy beans, in order to make them resistant to Round-Up.[12]
Monsanto also produces strains of crops resistant to natural
pests and predators. Examples of
these crops include the Bt-variety corn and cotton. Traditionally, corn and cotton crops are marked by a
vulnerability to infestation of the European Borer Moth. This moth bores into the stalks of
these crops, making the application of insecticide useless to control
infestations. Scientists created
the Bt-variety crops (dubbed YieldGard) by injecting a bacteria gene into the
plants that produces an endotoxin harmful to the moths.[13] Monsanto claims that this technology
limits the presence of the endotoxin to the non-edible portions of the crops; however
these varieties are currently not approved for human consumption.
Aventis, another biotech company, also produces a
genetically engineered variety of corn that produces a protein that is toxic to
certain insects. This protein is
known as Cry9C.[14]
The protein in this crop mimics
that of the Bt-variety, as both come from a certain type of bacteria found in
soil.[15] Due to human allergy concerns, this
type of corn (ÒStarLinkÓ) is used only for the purposes of animal feed, ethanol
production and seed increase.[16] Nonetheless, traces of Starlink corn
have been found in the U.S. food supply, subsequently causing the EPA, FDA and
USDA to severely restrict further use of it.[17] Incidents similar to this fuel the
controversy surrounding the use of GM crops by creating a fear that the spread
of artificially introduced genes cannot be controlled.
The science of
biotechnology contributes to the production of many beneficial advances in food
and health technology, allowing production to keep up with the pace of a
growing population. However, not
all aspects of this science are welcome.
Though the purpose and application of this branch of science are benign,
Ògenetically modified organisms have become the target of a very intensive and,
at times, emotionally charged debate.Ó[18] To the lay person, genetic modification
sounds confusing and daunting. The
process adopts a Frankensteinian approach to biological advancement that could
eventually introduce a monster organism into the ecosystem. However, this does not mean it is all
ÒevilÓ.
Proponents claim that advances in genetic engineering will
Òhelp increase production and productivity in agriculture, forestry and
fisheries.Ó[19]
Furthermore, it will help provide higher yields on marginal lands in countries
facing food shortages.[20]
Through cultivating genetically engineered rice containing beta carotene and
iron, scientists and governments have been able to improve the welfare of many
low-income communities.[21] Biotechnology has also contributed to
improvements in health and the environment. Currently, genetic engineering helps reduce the transmission
of human and animal diseases by aiding the discovery of new vaccines.[22] Genetically engineered bacteria can
clean up oil spills[23]
and genetically engineered crops may reduce the need for excessive use of
pesticides.[24] While list of benefits is both long and
impressive, many people still oppose their use.
The rise in popularity and use of genetically engineered
crops resulted in protests from all over the world. In the U.S. alone there are numerous consumer groups opposed
to genetically engineering natureÕs creations.[25] The entire European Union currently
imposes a moratorium on genetically engineered crops, constituting a de
facto boycott of all U.S. agricultural
products.[26] Even large companies voice strong
opinions against the use of GM plants.
Recently, Anheuser-Busch threatened to boycott MissouriÕs rice crops if
the state allowed GM crops to be grown within its borders.[27]
Opponents divide the risks of genetic engineering in two
basic categories: the effects on
human and animal health and the effects on the environment. Humans and animals consuming food products
composed of GMOs have the potential to develop increased sensitivities or
allergies to common foods.
Other potentially harmful consequences of consuming GMOS include the
transferring of toxins from one life form to another (such as the endotoxins in
Bt-variety crops), creating new toxins or transferring allergenic compounds
from one species to another. This
could result in serious adverse health effects such as poisoning and unexpected
allergic reactions.[28]
GMOs also subject the environment to the risk of an
imbalance of the ecosystem. These
risks include the possibility of Òout crossing,Ó which could lead to the
development of Òsuperweeds.Ó
Superweeds are those with increased resistance to diseases or
environmental stresses that may spread unnaturally and upset the ecosystem
balance.[29] Crops engineered to produce natural
pesticides could create ÒsuperbugsÓ that develop immunities to toxins that
their food sources are engineered to generate. The ecosystem could further
suffer from a lack of biodiversity as farmers gradually replace traditional
cultivars with a small number of genetically modified cultivars.[30] A cultivar is a variety of an organism
that occurs naturally and exhibits a certain genetic make up.[31] Normal cultivation techniques (using
unmodified plants) produce many types of cultivars through cross breeding and
hybridization.[32] Many scientists and researchers view
the natural diversity of cultivars as an important aspect of maintaining a
healthy ecosystem, because Òthe larger the pool of genetic resources, the
greater the options farmers have to meet changing conditions.Ó[33] Therefore, using few cultivars of food
crops with pre-programmed genetic material would decrease diversity and weaken
the ability of certain plants to naturally evolve to survive changing
ecological conditions.
There is also a problem concerning the genetic drift of GM
plant pollen and seed onto land where it is unwelcome. Genetic drift is a concept that
describes the process where genes from a GM crop transfer to a non- GM crop
through unknown means.[34] Genetic drift generally refers to cross
pollination of breeds. However,
the combination of modified and non-modified plant seeds also occurs in grain
elevators and during commercial transportation.[35] This phenomenon often accounts for the
controversies that come before the courts. In the usual case, patent holders of GMOs seek compensation
from farmers who ÒobtainÓ these crops inadvertently and continue to grow them
on their land. In other cases,
farmers may sue to prevent GM crops from drifting onto their property because
this risks removal or denial of organic certification.
As in most heated controversies, both sides possess credible
arguments and concerns about the future of genetically modifying living
things. While GM crops might
provide an answer to food shortages, the ability to patent GMO technology may
place the power over the food supply in the hands of a few companies. This is a result that policymakers
responsible for sustaining the tradition of farming in the United States have
tried to avoid.
The evolution of
farming offers some insight into the current form of plant variety
protection. The basic premise
behind farming is to find the best variety of a certain crop in order to
produce the highest yield while being the least susceptible to harmful
environmental effects. Before
significant developments in biotechnology, farmers in the United States
practiced the science of artificial selection to choose the seeds of crops
exhibiting the most favorable characteristics to replant for the following
season. The practice of saving
seeds for replanting was an important and invaluable tradition to the common
farmer because it helped guarantee the long-term survival of the farm.[36] This provided little incentive for the
development of a seed industry because no laws prohibited farmers from
replanting the seed from a former crop.[37] This method was effective, but limited
the amount of crop variety (germplasm) because most farmers chose from domestic
breeds.[38]
As domestic farming
continued to grow in the United States, a division between the wealthy
landowners and small-scale farmers began to develop. The small-scale farmer soon realized the disadvantages of a
limited germplasm base. This realization
began when a group of wealthy landowners imported exotic seeds and adapted them
to domestic climates.[39] Their successful use of germplasm
secured to them a large advantage in the farming industry.[40] They maintained this advantage by
forming private agricultural societies where different exotic seeds were
traded.[41] Inevitably, this arrangement kept the
various germplasms among the privileged to the severe disadvantage of the
common farmer.[42]
The government responded to this problem by using
ambassadors and military officers to collect seed from all over the world and
distribute it free to all farmers, not just those in exclusive agricultural
societies.[43] Government involvement in the seed
industry centralized control over the germplasm base, a responsibility later
transferred to the Patent Office in 1839 and, upon its creation in 1862, the
Department of Agriculture.[44] The governmentÕs involvement in
agriculture continued to provide little incentive for development of the seed
industry because farmers could obtain seed free from the government.
The growth of the seed
industry began upon the discovery of advances in biotechnology and the
successful pressuring of the government into giving up control over the
germplasm base. The rediscovery of
work done by Gregor Mendel in the realm of plant breeding allowed the seed
industry to produce hybrids, thereby giving it two advantages over farmers.[45] First, plant breeders could conduct
research to produce plant varieties with characteristics more desirable than
those existing merely through artificial selection. Second, breeders could create hybrid plants that, by nature,
do not reproduce themselves.
Hybrid plants by design are products of two inbred lines of plant.[46] This means that any progeny of a hybrid
plant will demonstrate variations in genetic code different from that of the
parent, resulting in an inferior variety less productive than the
original. If farmers want to
continue to benefit from a hybrid variety, they need to repurchase seed every
new season. This provided a lot of
incentive for the development of the seed industry.
The protection of the
seed industry continued with the Plant Patent Act of 1930[47] and the
Plant Variety Protection Act (added in 1970).[48] The introduction of these two acts does
not preclude the grant of a patent for a plant under the traditional patent
system, but provides more general requirements so that obtaining a patent for
plant protection is easier.[49] Each type of patent offers various
degrees of protection. The
benefits of each are described below in section III. As this protectionist structure continues to develop, more
power shifts to the seed industry.
The industry, through patenting various types of plants, controls the
rights to the plantsÕ progeny.
This is where the conflict between intellectual property and real
property begins.
The legislative
history of the Patent Act demonstrates that Congress intended to provide
inventors patents for Òanything under the sun that is made by man.Ó[50] The United States does not stand alone
in its quest to patent anything possible.[51] Conversely, some European Countries and
Canada refuse to allow patents for plants and animals, essentially things that
occur naturally or are considered Òhigher life formsÓ.[52] The Treaty on Trade Related Aspects on
Intellectual Property (TRIPS) provides specifically in article 27.3(b) that
plants and animals may be excluded from patentability.[53] Nonetheless, the upward trend in
agricultural biotechnology patents has outpaced the overall trend in patenting
throughout the U.S. economy.[54]
ÒThis trend reflects increased research and development, changing legal
doctrine on what is patentable, and different strategic uses of intellectual
property protection.Ó[55]
The power of Congress
to grant patents comes directly from Article I, section 8 of the
Constitution. Clause 8 authorizes
Congress to Òpromote the Progress and Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.Ó
Congress codified this duty in the Patent Act under Title 35 of the
United States Code, section 101 which provides the guidelines for
patenting. It allows Òwhoever
invents or discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, [to] obtain a
patent.Ó[56] Though the language does not explicitly
provide for the patenting of living things, the Supreme Court has interpreted
the Patent Act to incorporate living things created by a person under
Òcomposition of matter.Ó[57]
The current authority
for interpreting the Patent ActÕs applicability to living substances is the
Supreme CourtÕs decision in 1980 of Diamond v. Chakrabarty.[58]
In this case, the Commissioner of Patents challenged the patent application of
a microbiologist on the basis that the law did not provide for the patenting of
living matter. The microbiologist
applied for patent protection of a bacterium he ÒinventedÓ that was capable of
breaking down multiple components of crude oil. He thought the patent application was appropriate and lawful
because the new bacterium exhibited a characteristic not belonging to any
naturally occurring bacteria. This
made the bacteria both ÒnewÓ and ÒusefulÓ under the requirements of the Patent
Act. However, the patent examiner
decided not to issue a patent for the bacteria itself because microorganisms
are products of nature, and as living things they are not patentable under 35
U.S.C. ¤ 101.[59] In a five-to-four opinion, the court
held that anything Òman-madeÓ could be patentable, exempting only laws of
nature, physical phenomenon, abstract ideas and things which naturally exist
from the protection of a patent.[60]
In challenging the
patentability of the bacteria, the Commissioner pointed to both the Plant
Patent Act (PPA)[61]
and the Plant Variety Protection Act (PVPA)[62] arguing that
Congress had no need to pass such legislation if living things were in fact
capable of being patented. The PPA
allows anyone who Òinvents or discovers and asexually reproduces any distinct
and new variety of plant, including cultivated sports, mutants, hybrids, and
newly found seedlings, other than a tuber propagated plant or a plant found in
an uncultivated state, [to] obtain a patent.Ó[63] This act was designed to support the
work of a plant breeder as a patentable invention.[64] Likewise, the PVPA allows protection to
Òthe breeder of any sexually reproduced or tuber propagated plant variety
(other than fungi or bacteria) who has so reproduced the varietyÓ so long as it
is new, distinct, uniform and stable.[65] Unconvinced by this line of thinking,
the majority opinion stated that if Congress intended to prevent living matter
from being patented, it could amend the statute to do so.[66]
Conversely, the
dissenting opinion argued that Congress explicitly provided only two ways to
patent living material, and that was through the PPA and PVPA.[67] Justice Brennan pointed to the specific
language of the PVPA which exempts fungi and bacteria from the protection of a
patent as evidence of CongressÕ intent.[68] However, BrennanÕs dissenting position
was weakened in 2001 when the Supreme Court affirmed its holding that the
Patent Act was intended to cover patents for living things.[69] Therefore, an inventor of a type of
plant is not limited to patent protection solely under the PPA and PVPA. In fact, patent protection for GM
plants exists under the traditional Patent Act as a utility patent, as well as
under the PVPA or PPA.[70]
Unlike the United States,
Canada does not allow for patents on living things. In Harvard College v. Canada, the Supreme Court of
Canada faced the same question posed to the U.S. Supreme Court in Diamond v.
Chakrabarty.[71] Since CanadaÕs patent act was borrowed
directly from that of the United States, the Canadian Supreme Court was obliged
to make a ruling using the same statutory language.[72] The Supreme Court of Canada even
analyzed Diamond v. Chakrabarty for persuasive authority; however, it
sided with the dissent.[73] In interpreting the language of
CanadaÕs Patent Act, the justices held that when read as a whole, Òcomposition
of matterÓ excluded higher life forms like plants and animals.[74] They reasoned that if patent protection
was supposed to extend to these life forms, Parliament had the responsibility
of providing for this explicitly.[75]
While the Canadian
Supreme CourtÕs decision established an important precedent in patent
jurisprudence, it did not eliminate loopholes. Two years after the Harvard College decision, the Supreme
Court, in Monsanto v. Schmeiser, [2004] S.C.R. 902 upheld the
patentability of a gene that could be engineered to modify a living organism.[76] The Court reached this decision despite
the dissenting opinion focusing on the holding in Harvard College.[77] The dissent argued that the inability
to patent a living organism should technically void the patent right to a gene
within a living organism.[78] The Canadian Patent Office Manual
further supported this view because it specifically states that Òhigher life forms
are not patentable subject matter.Ó[79] Nonetheless, the law in Canada does
allow patenting a process for producing a higher life form Òprovided the
process requires significant technical invention by man and is not essentially
a natural biological process which occurs according to the laws of nature.Ó[80]
The rise in
international and domestic protection of patents reveals a distinct trend in
elevating the value of intellectual property rights over the rights of an
alleged infringer. When patent
rights conflict with traditional notions of physical property rights, courts
face the question of which law triumphs and which law is inferior. Currently, the clearest example of the
superiority of patent rights to property rights comes from the Canadian Supreme
Court decision in Monsanto v. Schmeiser.[81] This decision strengthens the ability
to protect a patent, and potentially serves as a source for highly persuasive
authority for United States courts.
Though the United States Supreme Court has no binding precedent on the
subject, the jurisprudence on the federal appellate level suggests that the
same result is inevitable. In
order to asses the possibility of the Canadian precedent becoming binding in
the United States, this section will analyze the Canadian Supreme CourtÕs
decision and compare it with current United States case law.
In 2004, the Supreme
Court of Canada affirmed a decision holding that a landowner had no right to
ÒuseÓ a GM crop that drifted onto his land.[82] The case began in 2002 when Monsanto
sued Schmeiser, a Saskatchewan farmer, for possessing Round-Up Ready Canola
without first paying for a technology use agreement.[83] Schmeiser owned a farm in Canada where
he had cultivated crops for over the last 50 years.[84] During the 1990s, many farmers,
including five of ScmeiserÕs neighbors, switched to growing Round-Up Ready
Canola because its genetic modification enabled the plant to tolerate the herbicide
Round-Up.[85] By switching to canola with a high
tolerance to herbicide, the farmers could control weeds more effectively. In order to obtain this canola seed,
the farmers entered into a licensing agreement with Monsanto, the seedÕs
manufacturer. MonsantoÕs contract
licensed the canola seed for $15 per acre and prevented any farmer from saving
seed to replant the following season without paying the technology use fee
again.[86]
Mr. Schmeiser never
purchased the Round-Up Ready Canola, nor did he take any from the nearby
farms. Instead, he discovered some
canola on the border of one of his fields while performing weed control, and
noticed it was resistant to Round-Up after it survived being sprayed with the
herbicide.[87] Unclear as to how the canola ended up
on his land, Mr. Schmeiser decided to keep the seeds and use them the following
year. Two years later, 95-98% of
his 1000 acres worth of canola tested positive for the Monsanto gene.[88] After discovering the presence of
Round-Up Ready Canola on Mr. SchmeiserÕs property, Monsanto sued him alleging
infringement of its patent.
The issue presented to the court was whether Mr. Schmeiser
infringed the patent by growing canola containing a patented cell and gene
without obtaining a license or permission.[89] In order to find that he infringed the
patent, the Court had to determine that he made, constructed or used the
patented gene or cell.[90] Since Mr. Schmeiser did not make or
construct the gene,[91]
the Court hinged its decision on the definition of the term Òuse.Ó[92]
The Court found that the term ÒuseÓ was implied when a
defendantÕs commercial activities involved the patented object.[93] Though Mr. Schmeiser claimed he was
using merely the plant, not the gene, the Court likened the situation to one
who used zippers made from a patented zipper manufacturing machine without a
license to use the machine.[94] Mr. Schmeiser offered as a defense the
notion that common law provides farmers a right Òto keep that which comes onto
their land. Just as a farmer owns
the progeny of a Ôstray bullÕ which wanders onto his land, so Mr. Schmeiser
argues he owns the progeny of the Round-Up Ready Canola that came onto his
field.Ó[95] The Court responded simply, Òownership
is no defence (sic) to a breach of the
Patent Act.Ó[96] This response by the court continues to
influence the protection the law affords to intellectual property rights.
The result of the Monsanto
v. Schmeiser case shows that intellectual property rights are superior to
the rights of others. The implications
of this holding raise questions as to how a property owner may protect herself
from the unwanted encroachment of GM crops. Moreover, it fails to suggest what protections exist to
prevent abuse of the patent holder.
An analysis of U.S. case law may enlighten a landowner to potential
remedies, or at least provide a foundation for a proper defense. The first analysis will attempt to find
plausible defenses to a patent infringement suit involving GM crops and the
second will attempt to find a suitable remedy for the unwanted presence of GM
crops on a landownerÕs farm.
The Supreme Court
decisions affirming patents for plants and living organisms leave very little
room to challenge the validity of a patent for a GM crop. The decisions in Chakrabarty and Pioneer
Hi-Bred, strongly affirm the right to plant patents under the PPA, PVPA and
Patent Act.[97]
These decisions broaden the protection of plant varieties, allowing a patent
holder to control the unauthorized reproduction of a plant. However, one may bring a defense of
patent misuse to challenge a patent as being in violation of antitrust laws,
[98]
or attempt to use the law of strays to avoid liability.[99]
In Monsanto v.
Swann, the defendant challenged a patent infringement allegation by
claiming that Monsanto misused its patent in violation of antitrust laws.[100] The defendant originally purchased a
use license for Round-Up Ready crops, but failed to renew it the subsequent
year. Following custom, Swann
saved the seed from the previous crop containing the Round-Up Ready gene and
replanted it. Upon discovering
this, Monsanto sued for patent infringement. In his defense, Swann claimed Monsanto had a ÒtyingÓ
arrangement that required him to repurchase seed from Monsanto every year
because he was not allowed to save any seeds from his previous crop.[101] He attempted to show that this practice
would destroy the secondary seed market as more farmers choose to buy GM crops.[102] Swann likened MonsantoÕs practice to a
used car dealer telling a car owner that she is obliged to buy a new car every
year.[103] However, the court held that MonsantoÕs
license agreement did not constitute a tying arrangement and that Swann was Òin
the position of a car-lessor crying foul upon discovering he cannot retain the
car after his lease expires.Ó[104]
In 2004, the Federal Circuit Appellate Court held in favor
of Monsanto again on this issue in Monsanto v. McFarling. [105] There, the court rejected the
same defense used by Swann because a market for unmodified seeds existed.[106] While this type of defense has not
prevailed in the past, it may carry more weight as Monsanto gains more of the
market share. In the year 2000, Monsanto provided nearly 40% of all canola
grown in Canada (4.5-5 million acres worth).[107] However, waiting for one company to
dominate the market is an unrealistic option for farmers. Therefore, the need to develop a more
credible defense still exists.
The traditional common law principle of the law of strays
could provide a credible and realistic means of avoiding patent infringement
for GM plants. However, In Monsanto
v. Schmeiser, the Canadian Supreme Court was quick to reject the notion
that the law of strays was applicable.
Schmeiser argued that MonsantoÕs attempt to claim rights to the plants that
drifted onto his land treaded Òon the ancient common law property rights of
farmers to keep that which comes onto their land.Ó[108] He reasoned that he owned the progeny
of the Roundup Ready Canola that came onto his field Ò[j]ust as a farmer owns
the progeny of a Ôstray bullÕ which wanders onto his land.Ó[109] The court dismissed this line of
reasoning by declaring that Òthe issue is not property rights, but patent
protection.Ó[110] Did the court make the wrong
decision? After all, Monsanto was
attempting to protect its property right in the patent.
In contrast to the Canadian Supreme CourtÕs view, ownership
should be a defense to patent infringement in the context of GMOs because
property rights are the real issue at stake. Consider the following set of circumstances: (1) farmer A
has acquired a GM crop protected by a patent through the genetic drift
phenomenon, (2) farmer B has acquired a GM crop with an expired patent (also
via genetic drift), and (3) farmer C has acquired an organic crop through the
normal process of pollination.
According to the present law, farmers B and C may reproduce and
cultivate the crops that are found on their land free of restrictions. Once patent protection expires, a GM
plant no longer receives a special classification. Likewise, a naturally occurring plant found growing on a
farmerÕs land receives no special protection of the law either. However, if a farmer ÒusesÓ a patented
plant she violates the law. In
essence, the law creates a fictional status exempting a product of nature from
the traditional common law notions of property once the plant receives patent
protection.
The presence of GM plants on farmland, or even in a personÕs
yard, may be offensive and damaging.
These plants threaten organic farmersÕ certification and potentially
subject regular farmers to patent infringement lawsuits. Unfortunately, a plaintiff seeking to
recover for damages caused by GM crops have few avenues for relief. Plaintiffs allegedly ÒharmedÓ by the
presence of GM crops on their lands have sought recovery under the torts of
negligence, product liability and nuisance. However, in the absence of a contract between the GM
manufacturer and injured farmer, product liability claims are bound to fail. Nonetheless, recovery under negligence
and nuisance doctrines is possible.
Without proof of physical damage to property, plaintiffs
face a difficult challenge in making a case for recovery of damages caused by
GM crops. One such attempt was
made by farmers in Sample v. Monsanto.[111] In Sample, non-GM farmers
brought a suit for loss of revenue caused by the European Union boycott of
American grain.[112]
The European Union boycotted all American grain based on the presence of GM
genes in the food supply.[113]
The court in this case dismissed the claim because recovery for purely economic
loss without physical damage to property is not allowed under the law.[114] Since the farmers could not prove
actual physical damage to their property, they could not recover for the loss
in value of their crops.
Though farmers cannot recover for economic loss caused by
general pollution of the food supply, courts have opened the possibility of
recovery for damage to non-GM crops caused by cross pollination with GM
crops. The district court in In
re Starlink Corn Products Liability, stated that contamination of a
plaintiffÕs corn supply is a physical injury constituting harm to property that
survives the economic loss doctrine and provides a means of recovery.[115] The contamination in this case occurred
when the defendantÕs Cry9C corn (Bt-corn) growing on neighboring farms cross
pollinated with other farmersÕ corn, producing progeny unfit for human
consumption and rendering the crops worthless.[116] In its dicta, the court noted that recovery
would be appropriate in situations where the plaintiffs' crops were
contaminated by pollen from StarLink corn on a neighboring farm or the
plaintiffs' harvest was contaminated by commingling with StarLink corn in a
transport or storage facility.[117]
The court in Starlink also stated that sufficient
evidence existed to form a claim for nuisance.[118] ÒA private nuisance is a
nontresspassory invasion of anotherÕs interest in the private use and enjoyment
of land.Ó[119] The court agreed with the plaintiffs
that drifting pollen can constitute an invasion that interferes with the
enjoyment of their land.
Furthermore, the court stated that all parties who substantially
contribute to the nuisance are liable.[120] This allows for a cause of action
against the manufacturer of the GM crop, as well as the farmer who grows it.
While this method of recovery appears plausible on its face,
establishing sufficient evidence to support a claim might pose a greater
challenge. For example, the
specific source of an ÒinvasionÓ may be difficult to pinpoint with sufficient
certainty. In Holden v. Lewis,
the district court dismissed a nuisance claim brought by a plaintiff for the
presence of bees on his land, alleged to live in his neighborÕs bee hives.[121] The plaintiff alleged that his
neighborÕs bees caused a tremendous annoyance to his family, and resulted in a
high rate of bee stings on his children.
The court dismissed the claim because the plaintiff could not identify
his neighborÕs bees as the source of the nuisance, especially considering that
many people in that area were beekeepers.[122] Though the facts of Holden
relate to bees instead of GM crops, there is a similarity. A farmer seeking to recover for damage
to his crops by GM crops will have to ÒidentifyÓ the source of the nuisance. In a farming community with many farms
cultivating GM crops, pinpointing the offending party can be difficult. However, some states do hold
manufacturers liable for nuisance Òlong after they relinquish ownership or
control over their polluting products.Ó[123]
A landowner may also be able to recover on a strict
liability theory. In Langan v. Valicopters, Inc., 88 Wn. 2d 855 (Wash.
1977), an organic farmer sued a crop dusting company for spraying part of his
farm with pesticide.[124] The application of pesticide to the
farmerÕs crops caused him to lose his organic certification.[125] As a matter of law, the court found
crop dusting to be an abnormally dangerous activity because damage to
neighboring property is still a risk, even when exercising the utmost care.[126] The court reasoned that the drift of
chemicals is unpredictable, and such drift can only be reduced, not eliminated.
[127]
Thus, the court held strict liability to be appropriate.[128]
The genetic drift of GM crop pollen is similar to that of
drifting pesticides during crop dusting.
When crops are grown outdoors, they are susceptible to the elements and
environment. This means that wind,
insects, and animals can easily transport pollen from a GM crop to a non-GM
crop. While the risk of cross
pollination may be reduced by mandatory set back requirements for GM farms or
special zoning districts, it may not be eliminated. The potential damage to a food supply is tremendous. Entire farms can lose organic
certification, farmers can suffer depressed market prices and cross pollination
of varieties can produce crops not fit for human consumption. The serious and
unpredictable consequences of growing GM crops could easily lead to the
conclusion that this constitutes an abnormally dangerous activity subject to strict
liability.
While successfully making a case for liability, a plaintiff
could still face difficulty in proving damages. Damage determination for loss of a crop should be relatively
easy since many crops are traded as commodities on a market. However, the success of a crop is not
always guaranteed. In Whitmer
v. Atchison, 90 F. Supp. 253 (D. Mo. 1950), the court held that damages to
a farmerÕs from a flood created by a neighborÕs negligence could not lead to
monetary damages because crop success was too speculative.[129] On the other hand, in Zvolanek v.
Bodger Seeds, Ltd., 5 Cal. App. 2d 106 (Cal. Ct. App. 1935), a sweet pea
farmer was awarded damages for injuries to his land and sweet peas caused when
another farmer flooded his land for irrigation.[130]
In the farming community, it is important to have a common
standard to measure the potential success of a crop. For example, in Permanente
Metals Corp. v. Pista, 154 F.2d 568, 569 (9th Cir. 1946) the defendant
operated a dolomite ore plant that discharged large amounts of dust into the
air.[131] The dust eventually settled over the
surrounding terrain and interfered with the pollination of the plaintiffÕs
apricot orchard, limiting production of the ensuing crop.[132] The
defendant claimed a drought was the cause of the low yield for that
season. However, the plaintiffs
were able to show that neighboring farms affected by the drought and not the
pollution produced 60% of normal yield, while the plaintiffs were producing 10%
of normal yield.[133]
While solid
case law has yet to develop directly on point, sufficient precedents exist to
provide a means to protect property from invasions of unwanted species. The current trend in plant patent
protection suggests that attempts to bring claims against GMO manufacturers and
GM farmers are futile, and defenses to infringement actions are
impossible. However, there are
specific cases that provide a proper foundation to strengthen property law in
relation to patent law.
Nonetheless, the bigger problem still remains because real property
rights are still subject to the rights of a patent owner of a GMO.
The current trend of valuing patent rights to living
organisms that reproduce naturally above the rights of landowners is
wrong. When Congress sought to
grant patents for Òeverything under the sun made by man,Ó it did not intend
sole ownership of living matter with the ability to exclude the use of others. The current system promotes harmful
practices by granting large companies the ability to impose monopoly controls
on farmers. Potential solutions to
this problem exist in redesigning the patent system for living organisms or
extending strict liability to GM crop manufacturers and regulating the use of
their products.
Without proper safeguards in place, the current system of
granting patents for living matter can be harmful. This system can create incentives for companies to try and
dominate the food supply market.
Furthermore, allowing a patent holder to maintain a property interest in
an organism that naturally reproduces could lead to unethical cultivating
practices that unfairly infringe on the property rights of others.
The ability of
a company to design a crop resistant to its own herbicide creates a conflict of
interest that advances a desire for profit over improving the well being of
society and contributing to technological advancement. For example, suppose company A sells
herb-A-cide to the farming community as an effective tool to prevent weed
growth. Company A has also
genetically engineered A-ok corn, a crop resistant to it herb-A-cide. With patents on both the crop and
herbicide, the company now markets its products in a package to farmers. As company A begins to dominate the
market, it is guaranteed a near monopoly position for the life of the
patent. Monopoly profits create
little incentive for the company to develop new technology or improve its current
technology. This drives
smaller seed manufacturers out of the market, limiting the amount of germplasm
available to create different varieties of crops. Soon society will pay higher prices for fewer varieties of
crops, and lose the benefits of having a greater variety of food
production.
There is an inherent problem in a patent system that allows
for a utility patent on a living organism, granting exclusive ownership rights
for twenty years. Since living
organisms reproduce naturally and have the ability to drift onto other areas of
land, a patent holder can benefit from a large number of potential infringement
actions. For instance, a company
merely has to plant seeds on a plot of farmland and wait until the genetically
engineered crops pollinate neighboring crops and produce second generation
varieties with the patented gene.
Under the current system, infringement of a patent does not require
intent.[134] Furthermore, courts have interpreted
the term ÒuseÓ to include mere possession.[135] Therefore, numerous farmers could
unknowingly grow GM crops and still be sued for unauthorized Òuse.Ó
This system also contains the potential to weaken the
property rights of farmers. As the
majority of farmers decide to grow GM crops, they will lose ownership in their
enterprise. While the farmer will
still own her land, she loses the traditional right to save and replant seed
from previous harvests.
Furthermore, the non-GM farmer will lose the traditional right of
cultivating that which naturally grows on her land. Farmers subject to the inadvertent presence of GM crops will
face higher costs in testing for the existence of patented genes in their
crops, which could weaken a landownerÕs right to exclude others.
There are three potential proposals to modify the current
system to allow for the protection of real property rights, the protection of
scientific research, and the protection of farmers. First, a firm definition of real property rights based on the
common law concept of usufruct will allow a landowner to benefit from the
products of her land. Second, the
elimination of plant patentability under the Patent Act will permit plant
breeders to maintain their rights under the PPA or the PVPA while allowing
farmers to continue their traditional practices. Third, imposing strict liability on GMO manufacturers to
encourage additional safety steps will prevent contamination of the food
supply.
The first modification
would define real property to include all rights to the consumables on a
property, especially those naturally occurring as reproduced by nature. This idea borrows core concepts from
the law of usufruct. The common
law concept of usufruct grants a land occupier the ability to use the fruits of
the land for his own benefit so long as the land itself it not harmed.[136] If the thing on the land is
Òconsumable,Ó then the usufructuary has full ownership rights, including Òthe
right to consume, alienate or encumber the thing.Ó[137] The State of Louisiana is the only
state in the Union to recognize such a right. Thought this right has not been tested against intellectual
property rights to GM plants, its foundation supports the idea that what grows
on the land for the purpose of consumption or harvest belongs to the one
rightfully in possession of the land.
The concept of a
usufructuary in Louisiana promotes the idea that there can be two owners to a
piece of land. The naked owner is
the one holding the fee simple interest, while the usufructuary holds an estate
interest for some determined period of time, typically a life estate.[138] The rights of the usufructuary are only
limited in terms of her relation to the naked owner and relevant state law.[139] Adopting this concept of landownership
would prevent a conflict between patent and property law, and secure to the
landowner that which customarily belongs to the land.
The second
modification would have Congress remove the ability of an organism and/or gene
to receive patent protection under the Patent Act. Instead, Congress should define the PPA and PVPA in order to
make each statute the only possible manner of patenting living material. This change in law would still afford a
plant breeder ample protection.
The PPA provides sufficient protection to new varieties of plants
because it prevents asexual reproduction without the authorization of the
patent holder.[140] Since the person applying for the
patent has developed the only plant variety of its kind, a true-to-type copy of
the plant is only available through asexual reproduction.[141] Thus, when a patent holder finds
another reproduction of her plant, the case for infringement is obvious.
The PVPA provides
supplementary patent protection for those plants, such as hybrids, that fall
outside the scope of the PPA. The
PVPA provides a mode of plant variety protection that benefits both the farmer
and the seed manufacturer.
Provisions in the PVPA prevent a farmer from competing directly with a
seed manufacturer, because a farmer may only reuse seeds for growing his own
crops. The act prohibits a farmer
from selling them to other farmers for profit.[142] This arrangement allows a farmer the
customary opportunity to save seeds for replanting. This process also allows seed manufacturers to derive a
profit from their research because subsequent offspring do not contain the same
valuable combination of traits as the first generation plants. The purity of the plantÕs genetics
decreases with each new generation, making the progeny less valuable over time. This incentivizes farmers to repurchase
seeds every couple of years in order to replant the most productive variety of
a crop. It also encourages seed
manufacturers to keep producing better and new varieties instead of exploiting
their patents until their expiration.
The combination of these outcomes creates a benefit that inures to all
of society.
Finally, the
production and cultivation of GM crops should be subject to a strict liability
regime, as well as increased regulation.
Due to the nature of plants, GM crops will naturally reproduce through
pollination. Since cross
pollination is difficult to control on large scales for different types of
crops, the responsibility for preventing the genetic drift should belong to the
seed manufacturers and GM farmers.
Placing the burden of preventing GM contamination on the shoulders of
non-GM farmers makes no sense.
Allowing GM farmers to reap certain benefits because of the genetic
qualities of their crops should not include the generation of negative
externalities, the costs of which are borne by the rest of society.
The potential harm
genetic engineering could cause to the environment requires application of the
same type of strict liability set out in Rylands v. Fletcher. Though not as inherently
life-threatening as a boiler, GM crops have the potential to strip non-GM
farmers of organic certification.
Since most of these GM crops are herbicide resistant, permanently
removing them from farmland can be an expensive procedure. Viewing GM crops in this manner will
give rise to increased forms of protections. Zoning laws would be an effective remedy for separating GM
farms in order to minimize their impact on other farmland. Seed manufacturers would also have
incentives to develop Òterminator genesÓ that only allow a plant to produce a
single generation, or completely eliminate its ability to reproduce.[143] Such genes would remove the liability
of the manufacturer regarding the ÒpollutionÓ of non-GM crops.
United States law should be wary of embracing strong patent
protection for GMOs because their impact on the well being of society has not
been determined. The rise in use
and popularity of Round-Up Ready and similar GM crops creates legitimate causes
for concern. While the potential
adverse health effects of GMOs are the major focus of international controversy,
farmers and other landowners stand to lose some of their traditional and well
known property rights. Despite
these problems, the U.S. Supreme Court maintains its position that living
matter is patentable outside the PPA and PVPA.
Though the law continues develop regarding the
degree to which patent protection is afforded to the patent owner, the current
trend works to the disadvantage of the property owner. The implications of this trend are
disturbing, and what is currently precedent in Canada may soon become the law
in the United States. However, the
law in the courts suggests there is a potential for defending property from the
presence, and even use, of GM crop pollen that inadvertently drift onto the
land of others. If case law fails
to protect traditional property rights, there is a need to reform the law. By codifying traditional notions of
property use, revising the Patent Act, and creating strict liability for damage
caused by GM crops, society will be protected from the dangers that the current
system poses. This modified system
will continue to encourage research and development in biotechnology while
securing to the farmer the right to practice traditional farming techniques.
* 2006 Graduate of the William S. Richardson School of Law at the University of Hawai`i.
[1] Monsanto v. Schmeiser, [2001] F.C. 256.
[2]
Peter Goldsbrough, Introduction to Agricultural Biotechnology, Purdue University online at http://www.agriculture.purdue.edu/agbiotech/
inthelaboratory.html (last visited May 12, 2006).
[3] Id.
[4]
Id.
[5]
Id.
[6]
Id.
[7]
Id.
[8]
See Harvard College v. Canada, [2002]
C.P.R. (4th) 417. (the Harvard Mouse was genetically altered to increase its
susceptibility to cancer, making it useful for research)
[9]
See Diamond v. Chakrabarty, 447 U.S. 303 (1980) (Genetically engineered
bacterium capable of breaking down crude oil).
[10]
See About Us, at http://monsanto.com/monsanto/layout/about_us/
default.asp (last visited May 12, 2006) (Round-Up is the worldÕs best selling
herbicide and Monsanto currently owns more patents for GM crops than any other
company).
[11]
See generally Monsanto v. Schmeiser,
[2001] F.C. 256.
[12]
See Seeds & Traits, at http://monsanto.com/monsanto/layout/products/
seeds_genomics/traits/default.asp (last visited May 12, 2006).
[13]
Nathan A. Busch, Jack and the Beanstalk: Property Rights in Genetically
Modified Plants, 3 Minn. Intell. Prop. Rev.
1, 49 (2002). (Hereinafter Busch). See also Seeds & Traits – Insect Protection,
at http://monsanto.com/monsanto/layout/
products/seeds_genomics/story1.asp (last visited May 12, 2006).
[14]
In re Starlink Corn Prod. Liab. Litig.,
212 F. Supp.2d 828 (N.D. I.L. 2002)
[15]
What is Starlink Corn and Why was it Used?,
at http://www.starlinkcorn.
com/History/What%20is%20StarLink%20corn.htm (last visited May 12, 2006) (Bt variety crops are engineered to
contain a certain gene from the strain of Bacillus thuringiensis (Bt) bacteria).
[16] Id.
[17]
Starlink—What Happened? at http://www.starlinkcorn.com/History/
What%20Happened.htm (last visited May 12, 2006) (Cry9C found in taco shells in
the United States and the EPA, USDA, and FDA placed heavy restrictions
governing the use of growing the corn).
[18] Food and Agriculture Organization of the United Nations, Statement on Biotechnology, at http://www.fao.org/biotech/stat.asp (last visited May 12, 2006).
[19]
Id.
[20]
Id.
[21]
Id.
[22]
Id.
[23] See Diamond, 447 U.S. at 303.
[24]
Genetically Modified Plants May Still Need Pesticides, at http://www.biotech-info.net/pesticides.html (last
visited May 12, 2006).
[25]
See generally Organic Consumers Association,
http://www.organicconsumers.org/ (last visited May 12, 2006)
[26]
See Biotechnology Industrial
Organization at http://www.bio.org/foodag/
action/tradefacts.asp (last visited May 12, 2006) (European Union (albeit illegally) is boycotting American
agricultural products based on the fact that the U.S. does not mandate testing
and cannot ensure that GMO genes are not present in the natural food supply).
[27]
Associated Press, Beer Giant Threatens Boycott over 'Medicinal' Grain, at (http://www.cnn.com/2005/US/04/12/beer.genetic.ap/
(April 12, 2005)
[28]
See Unlikely Reactions: Identifying Allergies to GM Foods, at http://pewagbiotech.org/buzz/display.php3?StoryID=12,
also High-Tech Crops, at http://www.pbs.org/newshour/bb/environment/july-dec99/seeds_8-12.html
(last visited May 12, 2006).
[29] See supra note 18.
[30]
See supra note 18. (A cultivar is a
plant variety within the same species that has a variation in its genetic
material).
[31]
George Van Esbroeck and Daryl T. Bowman, Cotton Germplasm Diversity and Its
Importance to Cultivar Development, 2 J. CottonSci.
121-129 (1998). Available
at http://www.cotton.org/journal/1998-02/3/upload/jcs02-121.pdf,
(last visited May 12, 2006).
[32]
Id.
[33]
David S. Tilford. Saving the Blueprints: The International
Legal Regime for Plant Resources, 30 Case
W. Res. J. Int'l L. 373 (Spring/Summer 1998).
[34]
Anthony Shadid, Blown Profits: Genetic Drift Affects More Than Biology
– U.S. Farmers Stand to Lose Millions,
The Boston Globe, Apr. 8, 2001 at G1.
See also Preston, Hilary Drift
of Patented Genetically Engineered Crops: Rethinking Liability Theories, 81 Tex. L. Rev. 1153 (2003).
[35]
Monsanto v. Schmeiser, [2001] F.C. 256.
[36] Busch, supra note 13.
[37] Busch, supra note 13, at 27.
[38] Busch, supra note 13, at 7.
[39] Busch, supra note 13, at 8.
[40] Id.
[41] Busch, supra note 13, at 9.
[42] Id.
[43] Busch, supra note 13, at 10.
[44] Busch, supra note 13, at 11.
[45] Busch, supra note 13, at 30.
[46] Pioneer Hi-Bred Int'l v. Holden Found. Seeds, 1987 U.S. Dist. LEXIS 18286 (D. Iowa 1987) (In order to create a hybrid seed, a company typically plants four to six rows of a particular parent referred to as a female, and alongside of it two rows of a parent referred to as the male. All plants in the female rows are detassled so that no pollen from those plants can fertilize the silks on those same plants. Seed fields are usually planted in isolation from other corn. Thus, the only pollen that can fertilize the female rows is from the male rows planted alongside. The seed on the ears in the female rows is the hybrid seed. The male rows self pollinate, have no value in the further breeding process, and are either chopped out or harvested separately and fed to livestock or commingled with other corn at elevators).
[47] Plant Patent Act, 35 U.S.C. ¤ 161 (2005).
[48]
Plant Variety Protection Act, 7 U.S.C. ¤ 2402 (2005).
[49]
See Diamond, 447 U.S. at 303.
[50] Id. at 309 (internal citations omitted) (Congress intended statutory subject matter to include anything under the sun that is made by man).
[51] See generally Harvard College v. Canada, 21 C.P.R. (4th) 417 (2002) (Countries such as France, England, Germany, Greece, etc. allow for the patent of a mouse with susceptibility to cancer).
[52] Monsanto v. Schmeiser, [2004] 1 S.C.R. 902. (Canada does allow for the patent of a gene and the process of using a vector to introduce the gene into a living thing. However, it does not allow a patent for the living thing itself.)
[53]
The Treaty on Trade Related Aspects on Intellectual Property, Apr. 1994, art.
27.3(b) (does allow for the protection of plant varieties, however that
protection does not necessarily have to be a patent. It includes effective sui generis systems of protection).
[54]
John King and Paul Heisey. Ag Biotech Patents: Who is Doing What? Amber Waves, (Nov. 2003) available at http://www.ers.usda.gov/AmberWaves/
November03/DataFeature/ (last visited May 12, 2006).
[55]
Id.
[56] Patent Act, 35 U.S.C. ¤ 101 (2005).
[57] Diamond, 447 U.S. at 313.
[58] Id.
[59]
Id. at 306. (note: a patent was issued
for the process of producing the bacteria)
[60]
Id. at 309.
[61] See Plant Patent Act, 35 U.S.C. ¤ 161 (2005).
[62] See Plant Variety Protection Act, 7 U.S.C. ¤ 2402 (2005).
[63] See Plant Patent Act, 35 U.S.C. ¤ 161 (2005).
[64] Diamond, 447 U.S. at 312.
[65] See Plant Variety Protection Act, 7 U.S.C. ¤ 2402 (2005).
[66] Diamond, 447 U.S. at 318.
[67]
Id. at 319.
[68] Id.
[69] J.E.M. Ag Supply v. Pioneer Hi-Bred Int'l, 534 U.S. 124 (2001).
[70]
Ex Parte Hibberd, 227 U.S.P.Q. (BNA) 443 (1985).
[71] Harvard College v. Canada, [2002] C.P.R. (4th) 417.
[72] Id. at 437.
[73]
Id.
[74]
Id.
[75]
Id. at 438.
[76]
Id. at 437.
[77] Monsanto v. Schmeiser, [2004] 1 S.C.R. 902, 939.
[78] Id. at 939.
[79]
Id. at 941
[80]
Id. at 941.
[81] Id. at 902.
[82] Id.
[83] Id.
[84] Id. at 912.
[85] Id. at 913. (weeds were easier to control because the Round-Up was an effective herbicide when it did not pose a threat to the main crops)
[86] Id. at 914.
[87] Id. at 912.
[88] Id. at 913.
[89] Id. at 910.
[90] Id. at 917-18
[91] Id. at 917. (In order to make or construct the gene, Schmeiser would need to physically synthesize it in a lab. The fact that the plant reproduced itself did not meet the definition of ÒmakeÓ or ÒconstructÓ under the statute.)
[92] Id. at 917.
[93] Id. at 919.
[94] Id. at 919.
[95] Id. at 937.
[96] Id. at 937.
[97] Id. at 926.
[98]
Monsanto v. Swann, 308 F. Supp. 2d 937
(E.D. Mo. 2003).
[99] Monsanto v. Schmeiser, [2004] 1 S.C.R. 902, 939.
[100]
Id.
[101] Id.
[102]
Id. at 941.
[103] Id.
[104] Id.
[105] Monsanto Co. v. McFarling, 363 F.3d 1336 (Fed. Cir. 2004)
[106]
Id. at 1342.
[107]
Monsanto v. Schmeiser, [2004] 1 S.C.R. 902, 939
[108]
Id.
[109]
Id.
[110] Id.
[111] Sample v. Monsanto, 283 F. Supp. 2d 1088 (E.D. Mo. 2003).
[112]
Id.
[113]
Id. at 1093.
[114]
Id.
[115]
Id. at 842.
[116] Id.
[117]
Id. at 841.
[118] Id. at 847.
[119] Restatement (Second) of Torts ¤ 821D.
[120] In re Starlink Corn Prod. Liab. Litig., 212 F. Supp. 2d 828, 847 (N.D. Ill. 2002)
[121] Holden v. Lewis, 56 Pa. D. & C. 639 (P.A. 1946)
[122]
Id. at 641-45.
[123]
Northridge Co. v. W.R. Grace Co., 556
N.W.2d 345, 352 (Wisc. Ct. App. 1996).
[124] Langan v. Valicopters, Inc., 88 Wn. 2d 855 (Wash. 1977)
[125] Id.
[126]
Id. at 861.
[127]
Id. at 861.
[128]
Id. at 861.
[129] Whitmer v. Atchison, T. & S. F. R. Co., 90 F. Supp. 253 (D. Mo. 1950)
[130] Zvolanek v. Bodger Seeds, Ltd., 5 Cal. App. 2d 106 (Cal. Ct. App. 1935)
[131] Permanente Metals Corp. v. Pista, 154 F.2d 568, 569 (9th Cir. 1946)
[132] Id.
[133]
Id. at 570.
[134] Monsanto v. Schmeiser, [2004] 1 S.C.R. 902.
[135]
Id. See also SmithKline
Beecham Corp. v. Apotex Corp., 365 F.3d
1306, 1329 (Fed. Cir. 2004).
[136]
Kennedy v. Kennedy, 683 So. 2d 720 (La.
1996).
[137]
Id. at 722.
[138] Id.
[139] Id..
[140] 35 U.S.C. ¤ 161 (2005).
[141] Sexual reproduction of a unique variety will produce a hybrid with different characteristics, thus the only way to copy a unique variety is through asexual reproduction.
[142] 7 U.S.C. ¤ 2543.
[143]
Terminator Genes: Fertility Right, The Economist, (Oct. 7, 1999), at http://www.economist.com/PrinterFriendly.cfm?Story_ID=247458