Patent Drift and Property Rights

Tom Abate gets the title right:
Agriculture, biotech mix uncomfortably

He poses a key question:
Schmeiser grew patented seeds. But he did not steal them from the seed store. Whose fault is it that Monsanto's seeds grew on Schmeiser's farm?

He ultimately comes up with the right answer:
But seed that drifts through the air, grows into a plant and produces new seed belongs to the person who owns the harvest. We are all familiar with the concept of exempting a practice from a new law, also called grandfathering. Seed saving is so ancient that it is Adam-and-Eved into the fabric of civilization. Schmeiser's right should trump Monsanto's patent.

Unfortunately, some of his science, law and reasoning along the way are a bit weaker. Abate suggest that because patented Monsanto canola seeds blew onto Percy Schmieser's Canadian prairie farm, and 'a Canadian judge found that Schmeiser eith knew or should have know that he was growing patented seeds that he hadn't paid for and ruled in Monsanto's favor.'

But it wasn't the seed that drifted, it was the pollen -- which then contaminated Schmeiser's own property -- his legally owened seeds.

Abate suggests that since Schmeiser 'knew that some of his saved seed carried the Monsanto brand -- since Monsanto inspectors warned him not to plant the saved seeds', that he's rightly guilty of patent infringement. I see it quite differently. Since he saved seed grown from seed he planted legally, that was subsequently infected by Mosanto drift, he's no more guily than someone who has evidence planted on him.

It's Monsanto that should be liable -- for criminal trespass (of their patented genetic code onto his land and into his seeds' genomes), and destruction of private property (by rendering his legal owned private property unusable).

The courts have yet to deal with the concept of 'biochemical privacy' articulated by the late Dr Robert van den Bosch, but eventually they will. When they do, they'll recognize pollution as a violation of fundamental property rights: no one has any business forcing their chemistry into anyone else's property -- biological or physical -- without permission.

With that said, some interesting tort law will develop (contracts and rents for pollution?). And some even more interesting right-left political alliances will form.