Innovate Ag Tech, Not Ag Tort: Why Legislative and Judicial Policies Favoring Tech Innovation and Big Ag's Ip Rights in Gmos Will Benefit Agricultural Production and Food Security

Publication year2022
CitationVol. 30 No. 1

Innovate AG Tech, Not AG Tort: Why Legislative and Judicial Policies Favoring Tech Innovation and Big AG's IP Rights in GMOs will Benefit Agricultural Production and Food Security

Gage Patton
University of Georgia, jwt74222@uga.edu

Innovate AG Tech, Not AG Tort: Why Legislative and Judicial Policies Favoring Tech Innovation and Big AG's IP Rights in GMOs will Benefit Agricultural Production and Food Security

Cover Page Footnote

J.D. Candidate, 2023, University of Georgia School of Law. A special thanks to Professor Terence Centner, who sparked my initial interest in agricultural law and policy.

This notes is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/9

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Patton: Innovate AG Tech, Not AG Tort

INNOVATE AG TECH, NOT AG TORT: WHY LEGISLATIVE AND JUDICIAL POLICIES FAVORING TECH INNOVATION AND BIG AG'S IP RIGHTS IN GMOS WILL BENEFIT AGRICULTURAL PRODUCTION AND FODD SECURITY

Gage Patton*

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................................238

II. BACKGROUND.................................................................................................240

A. CONSUMER PROTECTION OF GMOS...................................................241
B. BENEFITS OF GMO TECHNOLOGIES..................................................242
C. BIG AG CORPORATIONS AND THEIR BENEFITS................................244
D. THE HISTORY OF PATENT SEEDS........................................................246
E. COSTS ASSOCIATED WITH AGRICULTURAL RESEARCH AND DEVELOPMENT........................................................................................248
F. OPPORTUNITIES FOR REALLOCATION OF FUNDS.............................250
1. SNAP: Why Its Inefficiencies Make it a Good Source of Public Funding for Agricultural R&D......................................................250
2. Other Potential Sources for Funding the R&D Subsidy...........252
3. The Farm Bill: A Strategic Forum for Advocating for Increased Agricultural R&D Funding.............................................................253

III. ANALYSIS..........................................................................................................254

A. PROPOSAL 1: GOVERNMENT SUBSIDIZATION OF AGRICULTURAL R&D EFFORTS.........................................................................................255
B. PROPOSAL 2: REFUSE TO EXTEND NEW TORT CAUSES OF ACTION OF INDUCED NUISANCE AND TRESPASS TO CHATTELS...................257
1. The Issue: Cross-Pollination..........................................................258
2. Plaintiffs' Proposed Remedies.......................................................259
3. The Proper Response from Courts...............................................262

IV. CONCLUSION...................................................................................................266

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I. INTRODUCTION

A Genetically Modified Organism ("GMO") is a living organism with an isolated portion of its DNA sequence modified to cause the organism to perform a specific function.1 Scientists usually insert individual segments of DNA into the nucleus of one cell of the organism and then grow the single cell into an organism, which will subsequently take on a specialized function.2 GMOs are a topic of intense debate among food and agricultural community members. While critics contend that GMOs contribute to increased corporate control of our food system and have no positive impact on the overall yields of crops, there is significant evidence showing the positive effects GMOs have on the food and agriculture industry.3 Specifically, GMOs contribute to lower food prices worldwide, work to ensure a more sustainable global food supply, facilitate the reduction of pesticide use on farms, reduce food waste after harvest, preserve soil health, and reduce energy expenditures in agricultural operations.4

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It is no secret that intellectual property rights (particularly the right to exclude) are instrumental in generating incentives to innovate.5 Seed patents are a significant economic driver behind innovations in agricultural technologies.6 If it were not for seed patents that protect companies' rights to exclude others from producing the products, there would be less incentive to research, develop, and produce these products.7

This Note concerns two courses of action that will help contribute to the goals described above. The first course of action is an incentive program for research and development ("R&D") of patentable innovations in agricultural technologies. This incentive program would take the form of a government-funded subsidy to those companies best positioned to develop new and innovative agricultural technologies.8 Syngenta, Bayer, BASF, Dow Agrosciences, and FMC are the five largest agricultural chemical companies in the world9 and have the infrastructure to streamline research and production of new patented agricultural technologies.10 Incentivizing these companies, and others like them, to develop new patented genetically modified ("GM") crop technologies will contribute to an increase in new technological developments in the agriculture industry. New technologies usually yield significant benefits, such as increased efficiency in production.11 Greater efficiency can reduce production

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costs, which can, in turn, reduce the end product's price.12 This Note will explain the benefits and advocate for implementing this incentive program.

The second course of action is the implementation of judicial policies that promote more efficient agricultural production. Specifically, this Note is about installing protections for those entities generating new agricultural technologies such that they are guarded against unreasonable attacks from litigants seeking redress from the deepest pockets in the agriculture industry. Unwanted cross-pollination between GM crops and non-GM crops may incite litigants to go after the manufacturer of the GM seed because the manufacturer is the largest target with the most resources. Some legal scholars are on board with this litigation strategy and have thus come up with some new and innovative tort causes of action that target seed manufacturers.13 Consequently, this Note will also explore newly proposed methods of recovery in tort litigation involving cross-pollination between organic and genetically engineered ("GE") plant varieties.

Ensuring the agriculture industry maintains an environment supportive of innovation and technological development will contribute to food security worldwide. Judicial policies concerning tort theories and legislative policies concerning subsidized agricultural R&D are excellent ways to accomplish this.

II. BACKGROUND

GE seed varieties are created to enable a particular plant to develop a change in its natural function that benefits its production efficiency, yields, or even nutritional quality.14 While health benefits are sometimes the objective of GM seed development, the genetic modifications made in seeds generally manifest in a change in plant functionality, such as a new resistance to insect damage or tolerance to a particular insecticide.15 For example, Syngenta is a patent holder

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on Bt corn, a common genetically modified strain of corn seed that generates a natural toxin to ward off insects.16 GM seeds are developed through a series of steps whereby scientists identify a particular gene responsible for a particular function in one organism, isolate that gene, copy it, then insert it into the DNA of the plant sought to be modified.17 After the gene is inserted, the plant grows into a GM version of itself with a new set of functional capabilities.18

A. CONSUMER PROTECTION OF GMOS

Consumer dialogue has been mixed concerning the subject of GMOs. Several groups have expressed significant skepticism toward GMOs.19 Concerns about the possibility of GMOs causing adverse health effects have been a major conversation for many independent food safety organizations.20 For example, some critics are concerned that "[g]enetic engineering allows, for the first time, foreign genes, bacterial and viral vectors, viral promoters and antibiotic marker systems to be engineered into food."21 More recently, however, animosity against GMOs seems to have declined. Influential environmental groups and international political groups that were once outright hostile toward and refused to endorse GMOs may now be softening their position toward them.22 Regardless of consumer perception, however, GMOs are here to stay. In 2020, GMO soybeans comprised 94% of the world's whole soybeans in cultivation, GMO cotton accounted for 96% of all cotton being grown, and GMO corn

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accounted for 92% of all corn being grown.23 Additionally, "[m]ore than 95% of animals used for meat and dairy in the United States eat GMO crops."24 The GMO ship has sailed past the point of no return. Our world depends on GMO agricultural products in its supply chains and markets. Because of the ubiquity of GM products in agricultural and food products, the development of GMO technologies will only continue to increase as the world's food security demands become increasingly imminent.

B. BENEFITS OF GMO TECHNOLOGIES

Hunger rates have been increasing since the mid-2010s, but "[d]isturbingly, in 2020 hunger shot up in both absolute and proportional terms, outpacing population growth: some 9.9 percent of all people are estimated to have been undernourished last year, up from 8.4 percent in 2019."25 This upward trend in food insecurity and hunger has generated inquiry into the cause and solutions. It is becoming increasingly evident that the COVID-19 pandemic has magnified these food insecurity issues. A United Nations ("UN") report "estimates that at a minimum, another 83 million people, and possibly as many as 132 million, may go hungry in 2020 as a result...

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