A Remedial Benefit-Based Approach to the Innocent User Problem in the Patenting of Higher Life Forms

Abstract

One of the key controversies surrounding the patenting of higher life forms concerns the problem of the innocent user. Higher life forms are more likely to escape from their inventor than are more traditional types of invention, and, in consequence, a farmer may, through no fault of her own, find patented crops growing on her land. There is a strong intuition that the farmer who unintentionally grew that patented crop should not be liable for infringement, and it has been suggested that a substantive exception from liability is required to deal with the innocent user problem. In this paper, I argue that there is an alternative, remedial, approach to the problem. On the proper application of existing patent law remedies, the patentee will not have any remedy against the farmer in these circumstances. Damages are zero, as the patentee has suffered no loss; the farmer cannot be made to account for her profits, as she has gained no benefit from the infringement; and the farmer will not be enjoined from an action which she cannot control.