Halting Pig in the Parlor Patents: Nuisance Law as a Tool to Redress Crop Contamination

Abstract

The legal discourse regarding the problem of crop contamination caused by stray genetically modified (GM) traits generally centers around two remedies: the reduction in patent protection afforded to subsequent generations of patented seed, and the use of common law to protect the property rights of the farmer whose crops have been contaminated. This article supports the latter approach, specifically advocating for a private nuisance suit by the owner of the contaminated crop against the owner of the patented traits. The author argues that the former approach is not only unlikely to succeed, but may also prove detrimental to those farmers who find themselves growing patented crops they do not want. The author contends that a private nuisance suit is the most appropriate of all the applicable tort law remedies because it allows the court to balance the interests of the farmer, the patent owner, and society as a whole, thereby fashioning a remedy that fits the distinct characteristics of the case at hand. Furthermore, the author argues that existing case law supports a private nuisance claim brought by a model plaintiff against a seed patent owner. The author then builds the model plaintiff’s case, using existing case law to guide the discussion.