Drift of Patented Genetically Engineered Crops: Rethinking Liability Theories^
The issue of genetically engineered food has generated enormous discussion among consumers, corporations, non-profit organizations, and governments. Proponents of the technology tout genetically engineered food as the solution to world hunger.1 Supporters also argue that genetically engineered crops will lessen the environmental impact of traditional2 agriculture by reducing the use of chemical pesticides and herbicides.3 Opponents of genetically engineered food warn of myriad problems, including allergies in humans,4 pesticide and antibiotic resistance in other plants,5 increased use of pesticides and herbicides,6 loss of biodiversity,7 damage to non-targeted IMAGE FORMULA5
organisms,8 crop failure,9 unexpected changes in the altered plants,10 and ethical considerations.11 Despite these potential concerns, the prevalence of genetically engineered organisms in agriculture is increasing at an alarming rate.12 The pervasiveness of genetically modified products in food warrants a closer look at some of the risks involved. This Note will focus on one particular problem associated with genetically engineered organisms-genetic drift in agriculture. The phrase "genetic drift" is used to describe the problem of inadvertent spreading of genetically modified organisms (GMOs) from a farm choosing to use that technology to a neighboring farm that has chosen not to include GMOs as part of its crop.13 The Note uses the case of Monsanto Canada Inc. v. Schmeiser 14 as a factual predicate for discussion.
Because many GMOs are protected by patents,15 this drift phenomenon requires a balancing of patent rights against farmers' rights. Courts must evaluate the relative importance of the patent rights of the biotech companies, the farmers' interests, environmental concerns, and long-range economic considerations.16 This Note will argue that the unique nature of the patents involved in genetic drift cases necessitates a reformulation of these IMAGE FORMULA7
patent infringement claims. Specifically, the Note advocates the addition of the element of intent as a component of an infringement claim for patents of genetically modified plants. As a secondary response to the problem of genetic drift, this Note will suggest modifications to the patents themselves and the strengthening of common-law remedies for farmers; both techniques could be helpful in rectifying the current problems associated with genetic drift jurisprudence.
II. Scientific and Legal Background on Genetically Altered Foods
A. Scientific Background
Genetically engineered crops are produced by taking a gene from one organism and inserting it into the genetic make-up of another species.17 The spliced genes are chosen from organisms with some desirable trait lacking in the to-be-modified organism.18 Genes are moved not only between species but also between the plant and animal kingdoms. For example, a coldresistant gene from fish has been inserted into tomatoes to improve their hardiness to cold.19 Because genes are translated from one organism to another, the result is often labeled transgenic.20 The phrases "transgenic," "genetically engineered," and "genetically modified" all describe the same process and may be used interchangeably.21
B. Legal History of Genetically Engineered Plants
The products of genetic-engineering technology have been patentable since 1980, when the Supreme Court decided the case of Diamond v. Chakrabarty.22 Since that time, thousands of patents have issued for genetically engineered organisms.23 The type of patent held by Monsanto Canada Inc.24 protects not only the genetic material in the seeds purchased but also the next generation of seeds and any plants resulting from a hybrid IMAGE FORMULA11
of genetically engineered plants and non-GMO plants. …