How Real is the Concern that Seed Patents Will Turn Farmers into Inadvertent Infringers?

The fear that farmers could be found liable for patent infringement based on the inadvertent presence of patented genetically modified plants on the farmer’s fields has led to calls for limitations on the scope and enforceability of patents. These “reforms” would be especially problematic for agricultural biotechnology companies like Monsanto, but the repercussions could be more widespread, impacting a host of important cutting-edge technologies like synthetic biology and nanotechnology. Although stories of farmers being sued by Monsanto after their fields where inadvertently contaminated by genetic drift are widely circulated, inadvertent infringement based upon genetic drift or the presence of trace amounts of contaminating patented seed in a farmer’s field does not appear to have ever resulted in a lawsuit by Monsanto. The situation, however, might become more complicated in the not too distant future as advances in technology and developments in the market render it increasingly likely that infringement lawsuits will be filed in cases where it is more difficult to prove that a farmer has taken overt action unambiguously establishing the intentional use of patented technology, or even knowledge that a patented plant is growing in the farmer’s field. When faced with a case in which the equities tilt more favorably in favor of an accused farmer, courts should strive to maintain a balance between the desire to protect potentially “innocent” infringers and the need to maintain a vibrant patent system to foster further innovation in this important area of technology.