Biotrespass

Abstract

As the sciences of biotechnology, synthetic biology and nanotechnology develop, questions about liability for harms caused by self-replicating inventions will arise increasingly often. Although negligence, nuisance and other torts may be relevant in such cirumstances, trespass may be the more appropriate cause of action. In the first section of this paper, I explore doctrinal hurdles facing plaintiffs alleging biotrespass. To overcome concerns about the meta-physicality of molecular biotrespass, I draw analogies to "cybertrespass." To confront the problem of suing patent licensors for the actions of their licensees, I make reference to principles of landlord-tenant law. Well-established laws concerning wandering animals shed light on the policies underlying biotrespass. In the second part, I examine such policies in further detail, and consider the purpose of transporting property metaphors into bio/nanospace. The paper concludes that biotrespass can be a viable cause of action, if crafted carefully and understood properly.

Keywords: Biotechnology, nanotechnology, genetically modified organisms, property, patents, torts, trespass