3 Ky. J. Equine Agric. & Nat. Resources L. 179 (2010-2011)
In Pari Delicto and Crop Gene Patents: An Equitable Defense for Innocently Infringing Farmers

handle is hein.journals/kjequinan3 and id is 183 raw text is: INPARIDELICTO AND CROP GENE PATENTS:
AN EQUITABLE DEFENSE FOR INNOCENTLY INFRINGING
FARMERS
DAVID COSTA, PH.D.*
I. INTRODUCTION
The landmark Supreme Court decision Diamond v. Chakrabarty'
opened the floodgates for patenting eligible living organisms and transgenic
technologies,2    while    J.E.M    Ag    Supply,    Inc.  v.   Pioneer    Hi-Bred
International, Inc.3 unequivocally confirmed the right to file utility patents
for sexually reproducing plants.4 Since then, farmer use of genetically
modified (GM) plant species - plants which have man-made alterations to
their genome so that non-naturally occurring traits are expressed - has
become the norm rather than the exception. In fact, in 2005 the billionth
acre of crop planted from GM seeds was harvested.
Plants are living organisms capable of producing pollen and seeds,
and are thus able to replicate without human intervention. Besides merely
producing offspring, the character of pollen and the nature of genetics are
such that a plant's genes may spread for many miles so that far away plants
ultimately express these genes too.6 Therefore, a farmer may unknowingly,
unintentionally, and innocently grow plants expressing patented genes
because a patent holder has introduced into the environment a self-
propagating life form capable of disseminating a patented gene onto another
farmer's lands without human aid.7 In fact, human intervention cannot
* David Costa is a member of the patent bar, holds a J.D. from the University of Florida
Frederick G. Levin College of Law with a certificate in Intellectual Property, a Ph.D. in Medical
Sciences from the University of South Florida Department of Biochemisty and Molecular Biology, and
a M.S. in Biomedical Engineering from the University of South Florida, College of Engineering.
'Diamond v. Chakrabarty, 447 U.S. 303 (1980).
2 Id. at 309 (1980) (Here, . . the patentee has produced a new bacterium with markedly
different characteristics from any found in nature and one having the potential for significant utility. His
discovery is not nature's handiwork, but his own; accordingly it is patentable .....).
3 J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001).
4 Id. at 127 (We hold that utility patents may be issued for plants).
' Monsanto, Company History, http://www.monsanto.com/whoweare/Pages/monsanto-
history.aspx (last visited Feb. 25, 2011).
6 See generally Ken Belcher et. al., Genetically Modified Crops and Agricultural
Landscapes: Spatial Patterns of Contamination, 53 ECOLOGICAL ECONoMICs 387 (2005).
7 See Norman Siebrasse, The Innocent Bystander Problem in the Patenting of Higher Life
Forms. 49 MCGILL L.J. 349, 356-57 (2004).

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