Plants, Torts, and Intellectual Property

Abstract:     
This article makes the case for improving current systems for protecting plants and intellectual property rights in them. First, the U.S. system of separate and divergent intellectual property protection of new plants depending on the mode of propagation should be scrapped. A single statute for all plant varieties, as botanically defined, should complement utility patents. Second, on the matter of gene flow/genetic drift, there should be an alternative legal scheme if pervasive and enduring prejudice - whether pro or con genetically engineered crop plants - disrupts the application of otherwise fair rules of tort law. Third, a landowner should not be liable for patent infringement even for knowingly using genetically modified seeds or pollen that insects or winds carry onto his or her land from neighboring property. Monsanto Canada Inc. v. Schmeiser, (2004) 239 DLR (4th) 271 (Can.), was in significant part wrongly decided.

What ties these proposals together is the late Professor Harris's concept of trespassory rules. The first and third proposals revise the trespassory rules applicable to intellectual property rights in plants. The second proposal conditionally adjusts the trespassory rules in the law of tort - especially those of negligence, trespass, nuisance, and strict liability - that govern neighboring farmers.

Number of Pages in PDF File: 31

Keywords: plants, torts, intellectual property, utility patents, plant patents, plant variety certificates

JEL Classification: D63, D81, K13, K32, O13, O33, O34, Q16

Accepted Paper Series