Gone with the Wind: Why Even Utility Patents Cannot Fence in Self-Replicating Technologies

Genetically modified (GM) seeds are a self-replicating patented technology, which through pollen driftcan contaminate neighboring crops, leaving the contaminated farmer liable for patent infringement. When pollen driftoccurs, the patent holder should not be entitled to enforcement rights. This is because the self-replicating patented organism has itself caused the infringement and has simultaneously failed the moral utility test. Furthermore, patent enforcement should be void under the doctrine of ex turpi causa non oritor actio when infringement arises from unlawful trespass or nuisance caused by the patented organism.INTRODUCTIONSince Monsanto1 first introduced genetically modified2 (GM) seeds in India in 1998, more than 100,000 Indian farmers have committed suicide.3 During the peak of the tragedy, which has been labeled by some as the "GM Genocide," an average of forty-six farmers committed suicide each day, usually by drinking toxic pesticides.4 As conventional seeds became increasingly difficult to find, small farmers took out loans to purchase the GM seeds; despite claims of increased production, the seeds required double the water of conventional seeds, and some reports suggested the seeds were highly susceptible to bollworm parasites.5 Many farmers lost their entire crop and had no way of paying offtheir large debts.6Exacerbating the farmers' debts, however, is that Monsanto's GM seeds are licensed on the condition that the seeds will not be saved for replanting,7 requiring the farmers to purchase new costly seeds each year and placing the farmers further in debt. The stress and shame resulted in the GM Genocide, an epidemic tragedy.8 Like in India, GM seed patents in the US permit license agreements that prohibit seed saving and allow causes of action for both the breach of the license agreement, and the infringement of the patent, even when breach or infringement occurred because of pollen drift.9Pollen driftcan occur when cross-pollinating plants from GM seeds naturally release pollen that can contaminate nearby conventional crops growing on another farmer's land-a farmer who is not paying a licensing fee to the patent holder for the GM crop.10 Monsanto filed over 144 lawsuits between 1997 and 2010 for alleged patent infringement or breach of license for its seeds.11 And at least 700 matters have been settled out of court.12 The company has investigated a much greater number through its heavily funded investigation team and in conjunction with contracted private investigator services.13Patent infringement is a strict liability offense, and, as such, intent or fault on the part of the alleged infringer is irrelevant.14 In addition, courts have not found it relevant to infringement that the GM contamination actually causes financial and legal harm to the alleged infringer by contaminating his or her conventional crop and trespassing onto his or her land.15When such circumstances are present, the infringer is punished despite taking no action to infringe, which seems to go against the traditional notions of the Patent Act. The original language of the Patent Act of 1793,16 as authored by Thomas Jefferson, defined patentable subject matter as "any new and useful art, machine, manufacture or composition of matter."17 The word "art" was later changed to "process," but the usefulness requirement survived the patent statutes of 1836, 1870, 1874, and 1952.18This Comment argues that patent rights should be unenforceable when infringement is caused by the patented subject matter itself and is injurious. Although patents are currently enforceable in such circumstances, self-replicating patented technology-with its ability to cause injury without human interaction-warrants a restriction in patent rights because of the unique way in which it fails the moral utility test. Moreover, this Comment argues that patent rights in harmful pollen driftcases are also unenforceable under the doctrine of ex turpi causa non oritur actio, which prevents claimants from pursuing causes of action that arise in connection with an unlawful act. …