56 Hastings L.J. 769 (2004-2005)
Two Wrongs Don't Make a Patent Right

handle is hein.journals/hastlj56 and id is 799 raw text is: Two Wrongs Don't Make A Patent Right
Recent litigation over genetically modified corn reveals an
increasing imbalance between the property rights of genetic seed
manufacturers and the rights of individual farmers. Common-law
property doctrines and traditional patent law fail to protect farmers
leaving them exposed to both potential genetic contamination of their
crops and costly patent infringement liability. This Note proposes a
simple yet effective solution -Notice. Requiring patent holders to
provide notice to alleged infringing farmers sufficient to enable the
farmer to cease infringement optimally balances the rights of both the
patent holder and the farmer.
Part I of this Note gives a detailed history of the origins of living
organism patents in the United States. The three examples of transgenic
corn cases detailed in Part I.B demonstrate the types of problems that
can arise in this type of litigation. Part II illustrates the failure of existing
common-law property and patent doctrines to correctly balance the
rights of the patent holders and farmers. In addition, alternative solutions
proposed by legal commentators are unlikely to be adopted and do not
achieve the desired balance of rights.
Part III proposes and analyzes a possible solution using the three
cases outlined in Part I.B. This solution derives from a broad
interpretation of the existing notice requirement provided in section
287(a) of the United States Patent Act. This proposal optimally balances
patent holder's rights and alleged infringing farmer's rights; furthers the
purpose of the Patent Act and the notice requirement; and is
economically efficient.
* J.D. Candidate, University of California, Hastings College of the Law, 2oo5; B.A. University
of California, Berkeley, 1994. I would like to thank the members of the Hastings Law Journal
including especially John Stanley, Chris Tarbell, Amy Deng, and Abigail Ramsden for their
encouragement and editorial expertise. This Note could not have been completed without the
assistance of the partners at Circadia, Mariposa & Bryant. Finally, special thanks to my family for
challenging me, providing unending support, and helping me chase all my dreams.


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