BY: JENNIFER PACHECO

Should patent rights be enforceable when the infringement is caused by the patented organism itself?

In today’s world, genetically modified (GM) seeds are a self-replicating patented technology, and the question of whether patent rights should be enforceable in all cases deserves attention. In a situation where the patented organism itself has caused the infringement, without any human interaction, can anyone be accused of infringement? The blame may be on a natural process called pollen drift. “Pollen drift is the cross-pollination of agricultural commodities and can be caused by the movement of animals or shared equipment, by the wind carrying plants and seeds to other farms and contaminating the plants, or by planted, but dormant, seeds.”[1. Keith Aoki, Weeds, Seeds, & Deeds: Recent Skirmishes in the Seed Wars, 11 CARDOZO J. INT’L & COMP. L. 247, 297 (2003); See The World According to Monsanto (ARTE France television broadcast Mar. 11, 2008), http://www.youtube.com/watch?v=N6_DbVdVo-k (discussing the potential endangerment of Mexico’s traditional corn growing region, Oaxaca, because GM corn has contaminated parts of the region despite the illegality of cultivation in the region).] Through pollen drift, GM seeds can contaminate neighboring crops, leaving the contaminated farmer liable for patent infringement. Since patent infringement is a strict liability offense, the infringer’s intent or fault is not relevant.[2. 35 U.S.C. § 271(a) (2006) (omitting intent or fault as elements of patent infringement).] However, because the self-replicating organism itself causes the infringement through pollen drift, a restriction of patent rights makes sense. Otherwise, more innocent farmers will have to defend against infringement suits.

Even when patented technology can replicate itself, a purchaser doesn’t have the right to use replicated copies of the technology.[3. Monsanto Co. v. Scruggs, 459 F.3d 1328, 1336 (2006).] However, this practice of seed saving is different from one farmer purchasing patented seed and that seed then contaminating another farmer’s crops through pollen drift, which is a stage of self-replication.  Even though both involve the prohibited use of self-replicated seed, pollen drift and seed saving are different in that farmers who engage in seed saving have the intent to use replicated copies. If more courts were to consider intent when awarding damages, perhaps accused farmers would have less of a financial burden from the unintentional contamination and inevitable infringement suits against them.