GMOs and Patents

by Porter Vanderpuije, Economics major

There has been ongoing litigation between farmers and GMO companies over seeds and patents.  The main debate has been surrounding genetic pollination & how much patent protection, if any, should be granted to GMO companies, and whether the patent rights have been utilized rightfully against farmers.  Producers who do not knowingly plant any form of GMO seed might still have crops yield positive tests, if the crops are contaminated by GMO pollen which drifted in from neighboring fields. Such positive GMO tests might also result if the crop is otherwise “contaminated” with GMO seed after harvest or during shipping or processing.

The GMO debate provides several examples of the significance of controlling terms and language.  Under traditional pesticide drift law, if the judge views the product as a pesticide then the person using it will be responsible and strictly liable for its movement off the property. If it is seen as a natural product —  then the fact the crop expressed itself all over the neighbor’s field may not result in liability.  David versus Monsanto, the story of a Canadian farmer whose land was contaminated by proprietary GMO plants from Monsanto, a big biotechnology company, and was sued by Monsanto for infringement.  Schmeiser infringed on Monsanto’s patents because he did not obtain a license for his replanting of the harvested contaminated seeds.

The US Supreme Court case Bowman v. Monsanto dealt with an alternative case where the farmer had proper license to replant the GMO harvest seeds. They introduced a legal doctrine called patent exhaustion, which states that patent rights are applied only to the first sale. Any subsequent owner of a patented article other than the original seller may use or sell the thing without patent restriction.  The purpose of the patent system is to give inventors a period of exclusivity for commercial development of products, encouraging innovation. Utility and plant patents have a patent term of 20 years from the initial filing, so GMO patents protect a marketed product for about 15 to 20 years after the time of product development.  Utility patents, offers a different type of patent with more stringent requirements on the  description of the invention. It can be seen by this and many other legal loopholes that the infringement laws are not so clearly differentiable.

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