Induced Nuisance: Holding Patent Owners Liable for Gmo Cross-contamination

• Publication year: 2014

Induced Nuisance: Holding Patent Owners Liable for GMO Cross-Contamination

Sabrina Wilson

INDUCED NUISANCE: HOLDING PATENT OWNERS LIABLE FOR GMO CROSS-CONTAMINATION

ABSTRACT

The landscape of modern organic farming changed drastically with the introduction of genetically modified organisms (GMOs). Today's organic farmer must be constantly vigilant of the threat of GMO cross-contamination. Genetic drift and cross-contamination from GM crops will render organic crops unmarketable, resulting in economically damaged organic programs. Current regulatory systems are unable to protect against the risk of GMO contamination, relegating the judicial system to address the resulting damage. However, many organic farmers who find their crops contaminated are reluctant to seek redress for fear of possible patent infringement suits by the GMO patent owner (typically Monsanto). This is understandable considering that Monsanto continues to find support in the courts when enforcing its patent rights in GMOs.

The unique nature of self-replicating GMOs has spurred many legal questions that lie at the intersection of patent owner and organic farming rights. This Comment explores the recourse currently available to the organic farmer harmed by GMO cross-contamination and argues for a new theory of liability: induced nuisance. The theory of induced nuisance would allow the organic farmer to hold the GMO patent owner directly liable for harm stemming from the activities of its GMO licensees. Arguably, this would result in an overall efficient outcome. The organic farmer, who may face the near impossible task of proving from what neighboring farm a particular GMO originated, could easily link it to the patent owner. Additionally, holding the patent owner liable for GMO contamination places liability on the party in the best position to assess and control the risk of future contamination.

[Page 170]

Introduction..............................................................................................171

I. Cross-Contamination—Insight from the Courts....................174

A. The Patent Cases—Who "Owns" Genetic Drift?....................... 174
B. The Tort Cases—Foreseeability of Genetic Drift....................... 178

II. GMOs—Inherently Harmful to the Organic Market............181

A. Contamination by Transgenic Organisms—Theories of Liability...................................................................................... 181

1. Negligence............................................................................ 182
2. Strict Liability....................................................................... 183
3. Trespass................................................................................ 184
4. Private Nuisance.................................................................. 185

B. Identifying the Proper Defendant............................................... 186
C. Induced Nuisance....................................................................... 189

1. Viability of a Private Nuisance Claim for Cross-Contamination ........................................................... 189
2. Inducement Through Licensing............................................ 190

III. Economic Implications of Patent Owner Liability.................193

A. The Problem of Multiple Actors—The GMO Farmers ............... 194
B. Channeling Liability ................................................................... 195

Conclusion..................................................................................................198

[Page 171]

Introduction

Organic farmers produce crops for a specific market and farm without the use of pesticides, herbicides, or genetic modifications.¹ But since the introduction of genetically engineered "frankenfoods" into the agricultural landscape, organic farmers have had to vigilantly ensure the continued integrity of their crops.² Unwelcome pollen from genetically engineered plants frequently makes its way onto neighboring lands.³ If an organic farmer's land or crops are contaminated by genetically modified pollen from a neighboring farm, he may find remedy in a tort action against his neighbor. But this approach omits an important party to the creation of the harm—the owner of the patented genetic modification. Companies such as Monsanto, along with the courts, have made clear that it is the patent owner who maintains a property interest in any and all "genetic drift"—not the farmer who works under a license.⁴ And given that it is the patented genetic modification that created the inherent and foreseeable harm to organic farmers in the first place, the patent owner should be held liable.

It has been over thirty years since the Supreme Court held that genetically engineered organisms were patentable subject matter.⁵ Incentivized by the patent system, scientists have since introduced the world to a vast number of artificial and transgenic life forms also known as genetically modified organisms (GMOs).⁶ Plant varieties of GMOs are examples of such novel creations.⁷ Biotech scientists engineer the genes of known plant species to create new life forms—a process much different than classical selective

[Page 172]

breeding and hybridization.⁸ A modified plant's genetic makeup will include artificially introduced genes, possibly from a completely different species such as insects, bacteria, fungi, or viruses.⁹ The motivation behind altering plant DNA may vary, but many crops have been specifically engineered to tolerate pests and weed killers, thereby increasing crop yields.¹⁰ Due to self-replication, this genetically modified DNA will then pass to future plant generations.¹¹

Although the concept and development of genetically modified crops has been a notable innovation in farming,¹² the advent of new technology can also usher in a host of unanticipated problems.¹³ The deregulation of GMOs for use in the U.S. food supply has stirred a huge controversy over food safety and the public's right to be informed.¹⁴ On the consumer end, opposition to GM crops has translated into a market divide between products that do contain GMOs and those that do not.¹⁵ Farmers who employ organic farming processes have capitalized on this growing market divide and now produce goods that compete directly with genetically modified food sources.¹⁶ But the inherent nature of GMOs introduces an interesting twist to this developing market competition. The very GMOs that helped establish higher demand for organic products are, by design, inherently dangerous to competing organic crops.¹⁷ To illustrate this point, consider the promiscuous nature of plant reproduction. GMO pollen can

[Page 173]

travel for miles, enter organic farmland, and "cross-pollinate" organic crops.¹⁸ The resulting contamination renders those crops unfit for the organic market.¹⁹ In other words, GMOs can quite literally "seek out" and destroy the competition—a harm not well tolerated in most markets. But as stated above, new technology can introduce new and unique problems.²⁰ The question is how will the legal system adapt?

Genetically engineered crops currently fall under the regulation of the Federal Food, Drug, and Cosmetics Act (FDCA), the Plant Protection Act (PPA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the National Environmental Policy Act (NEPA).²¹ Many scholars and commentators have criticized the current regulatory framework for not adequately addressing the problems that accompany GMO farming, namely the issue of cross-contamination.²² Although scholars have suggested that new legislation should be drafted to specifically address the introduction of genetically engineered crops, the federal government has relied on the preexisting framework to regulate new genetic engineering technology.²³ There is no legal framework that directly addresses cross-contamination by GMOs,²⁴ and the current regulatory framework is not able to prevent GMO cross-contamination of non-GM crops.²⁵ Not surprisingly, if cross-contamination under the current regulatory framework is basically inevitable, issues and harms resulting from cross-contamination will ultimately be brought before the courts.²⁶

[Page 174]

This Comment addresses the legal recourse that should be available to an organic farmer whose land is contaminated by OMO pollen drift that originates from a neighboring farm. Specifically, this Comment argues that the organic farmer should have a direct cause of action against the OMO patent owner under a theory of induced nuisance. To arrive at that claim, Part i examines what the current case law reveals about the patent owner's rights and interest in OMO pollen drift as well as the foreseeability that contamination will occur. Part ii examines the unique nature of OMOs under current common law doctrines and further proposes a theory of induced nuisance for cross-contamination. Finally, Part iii explores the economic implications of holding the patent owner liable for cross-contamination.

I. Cross-Contamination—Insight from the Courts

Two distinct lines of lawsuits have emerged from the issue of OMO cross-contamination: patent infringement suits brought by GMO patent owners and tort suits brought by farmers economically harmed due to contamination. Section A will summarize how courts have addressed the unique patent enforcement issues that arise with self-replicating technology. This section will also highlight that the GMO patent owner is the party who maintains a legal interest in genetic drift and will further explore the legal implications for organic farmers whose land may become contaminated. Section B will then summarize prevalent tort cases that have been brought due to economic harms suffered by non-GMO farmers.²⁷

A. The Patent Cases—Who "Owns" Genetic Drift?

The promise of GMO seed patents has been a catalyst in the agricultural industry's shift from small farming outfits toward large agribusiness.²⁸ Large companies...