John,
By what legal theory do "owners" of engineered genes expect to
prevail in simultaneously claiming ownership rights and denying
ownership liabilities?
It seems like Alice in Wonderland. Can a legal-minded person
please give a primer with a bare minimum of flak, spin and hyperbole.
Well, I am not very legal-minded, but here is my understanding of this.
Regarding ownership rights, the US Supreme Court decided in the 1980
Chakrabarty case that organisms can be patented under utility patent
law.
http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty
The seed industry interpreted this as applying to sexually propagated
plants (vegetatively propagated plants were already protectable under
the 1950 "Plant Patent Act"). It was widely regarded that transgenic
varieties were sufficiently novel to be protected by utility patents,
but the seed industry saw this as an open door to patent virtually
anything.
This was tested all the way to the Supreme Court in 2001 in the J.E.M.
Ag Supply Inc. v. Pioneer Hi-Bred International Inc. case. Pioneer
won.
http://www.cph.com/Publications/enter.html
Regarding liabilities, there are two problems in seeking damages from a
purveyor of transgenic plants (or plants in general).
First, one has to establish that real damage was done. Suppose that I
am growing organic Hopi Blue maize for organic blue corn chips under a
contract that specifies freedom from GM contamination. My neighbor
plants Bt corn that happens to flower on the same day, contaminating my
crop with a few percent transgenic outcrosses. I might be tempted to
go to court to seek damages. But the defense would argue that the
damage was imaginary and nebulous, and that the corn is perfectly good
for making corn chips. I don't think it would matter what sort of
contract I had made. Since the USDA organic standards do not mandate
freedom from GM contamination, and since there is a virtual consensus
among mainstream scientists that such corn is "substantially
equivalent" the court would probably find that no damage had been done.
The (implicitly nebuluous) contract I made would be my own problem.
Second, there is some sort of legal precedent regarding contamination
of crops by adventitious pollen that genuinely does cause damage. Such
contamination is a big problem in seed production. Red onion pollen
being carried by bees into white onion seed fields is a classic
example. Avoiding contamination is formally the problem of the seed
producer. If the bees do not cooperate, and a seed producer's crop
becomes contaminated, it is THEIR OWN problem. Isolation is managed by
an extensive system of gentleman's agreements, ad-hoc arrangements, and
by leasing isolation distance. All these companies throw away plenty
of seed that gets contaminated, and as far as I know, they never try to
sue anyone. There is probably case law that applies, but it must be
very old. If you were to dig this up I am pretty sure you would find
that it does not support plaintiffs in pollen contamination cases.
So there are two ways that a case like this is likely to fail in court.
I think GM pollen (or spillage) contamination cases would be difficult
to pursue in court, even if you had a huge amount of money and the best
lawyers. But who knows? All these things are ultimately political.
Dale
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