The Rights and Responsibilities of Biotech Patent Owners
UBC Law Review, pp. 343-373, 2007
38 Pages Posted: 17 Jul 2007 Last revised: 25 Feb 2016
Date Written: 2007
Property law, specifically intellectual property (IP) law, has had to face questions such as: what rights does a patentee have concerning the second, third and subsequent generations of progeny of transgenic organisms containing a patented biotechnological invention? Among the questions faced in tort law is the inverse: what are the responsibilities of a patentee when such things cause harm to persons, property or economic interests? Both questions are reflective of the social, legal, ethical and commercial controversies that permeate the topic of biotechnology.
These questions were considered, separately, in two recent Canadian cases about agricultural biotechnology. In Monsanto v. Schmeiser, Monsanto argued successfully that ownership of a patent for a molecularly engineered plant gene and transgenic plant seed entitled it to full control over stray plants and progeny containing the gene, even though a plant itself is not patentable subject matter under Canadian law. In Hoffman v. Monsanto, a group of organic farmers argued unsuccessfully that patent ownership also entails responsibility for damages to organic crops and crop markets caused by straying genetically modified organisms. In short, Canadian courts have held that a patent entitles its owner to all of the rights but none of the responsibilities of ownership.
These two cases demonstrate why biotechnology issues must be studied as part of a bigger picture. Looking at them through the lens of patent law or tort law in isolation is inadequate, yet little work has been done on the link between IP rights and tort liabilities in biotech. Only a handful of scholars have juxtaposed these issues. No judge has yet conducted a thorough and comprehensive legal analysis. Questions about rights and responsibilities are too often examined independently of each other. Moreover, extra-legal considerations, including philosophical, ethical, economic, environmental and other social concerns, are too often ignored.
Seen in a broader light, the lack of legal liability that results from the Hoffman decision is part of a trend away from accountability for technological innovation. At the same time, there is a trend toward according technological innovators more numerous and powerful property rights. Patentees are quick to invoke the power of property rhetoric to expand and protect their rights, but when it comes to the liabilities ordinarily associated with ownership, the tune suddenly changes. This paper examines one aspect of that trend: the rights and responsibilities of biotech patent owners in the field of agriculture.
Part I demonstrates the existence of a legal disequilibrium by comparing and contrasting the Schmeiser and Hoffman decisions. Part II looks at various ways in which to restore equilibrium and the consequences of doing so. One option is to narrow the scope of patent rights. Another is to recognize responsibilities. Practical and policy considerations suggest the latter response is more appropriate. The thrust of my message throughout this paper is that biotech patent owners must start owning up to their ownership obligations.
Keywords: patents, torts, property, biotechnology, agriculture, Schmeiser, Hoffman, rights and responsibilities
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