Is Changing Patent Infringement Liability the Appropriate Mechanism for Allocating the Cost of Pollen Drift

I. INTRODUCTION Now that plants are patentable subject matter, new issues are arising in the context of patent infringement because of the ability of plants to spread through pollen drift and naturally propagate without human intervention. Part II introduces this issue in the context of Monsanto Canada Inc. v. Schmeiser.1 Part II also provides background on the history and science behind genetically modified plants as well as the development of intellectual property law with respect to plants. Part III begins by evaluating some of the alternatives available for an alleged infringer that receives patented plant matter from pollen drift. Other commentators have proposed nuisance, trespass, and monopolization as possible counterclaims that an alleged infringer could assert. Part III highlights the drawbacks of these alternatives. It also addresses two possible legislative actions for this issue: (1) requiring an element of intent for infringement in these special situations; or (2) indemnifying infringers who are infringing because of pollen drift. Part III highlights why requiring an element of intent would be impractical in reality. Using Coase's theorem, Part IV analyzes whether indemnifying the passive recipient of pollen drift would actually allocate the cost of pollen drift to the patent holder, assuming this allocation of costs is the desired policy. Part IV concludes that indemnifying legislation is not likely to allocate the cost of pollen drift to the patent holder. This Note suggests that other legal mechanisms, such as regulatory agencies, are better equipped to allocate and enforce the costs of pollen drift. II. BACKGROUND A. The Source of Discussion-Monsanto Canada Inc. v. Schmeiser 1. The Trial Court Decision In 1996, Percy Schmeiser planted and grew conventional2 canola near Bruno, Saskatchewan.3 At the same time, five neighboring farmers grew Roundup Ready canola.4 One of these Roundup Ready canola fields was diagonally adjacent to Schmeiser's field six,5 while the next closest field was located five miles from field two.6 In 1997, Schmeiser planted his canola crop using seed saved from the 1996 harvest of field one.7 During the 1997 growing season, Schmeiser's routine ditch spraying of Roundup along fields one through four revealed a large number of Roundup-resistant canola plants.8 Schmeiser then conducted a test in field two and found that approximately 60% of the plants were resistant to Roundup herbicide.9 Also during the 1997 growing season, an investigator from Monsanto took seeds from fields two and five.10 Tests on these samples revealed a significant amount of Roundup resistance, indicating that the crop contained the Roundup Ready gene.11 In 1998, Schmeiser planted his canola crop using seed saved from his 1997 harvest of field two.12 During 1998, more samples were taken from Schmeiser's canola fields, with significant amounts testing positive for the Roundup Ready gene.13 Schmeiser and Monsanto disagreed about the amount of Roundup resistance exhibited in Schmeiser's 1998 crop with Schmeiser's tests showing approximately 40% to 50% Roundup resistance,14 while Monsanto's tests showed approximately 95% to 98% resistance.15 Monsanto then sued Schmeiser in 1998, alleging infringement of its Canadian patent number 1,313,830 (the Roundup Ready gene) because Schmeiser had grown and sold canola plants with the patented Roundup Ready gene without a license or consent from Monsanto, the patentee.16 After a trial on the merits, the court made several findings. First, the trial court concluded that the crop samples obtained by Monsanto were admissible evidence.17 second, the court found that Monsanto's patent was valid, rejecting Schmeiser's arguments for invalidity.18 With respect to patent validity, the court concluded that it did not matter whether the patented gene could naturally replicate itself and spread without human intervention.19 Third, the trial court determined that Monsanto did not waive its right to enforce its patent,20 concluding that the manner in which the patented gene arrived onto Schmeiser's property did not matter. …

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