Catch My Drift? An Alternate Paradigm to Cross-Pollination Disputes

Jay F. K. Ponto, California Polytechnic State University - San Luis Obispo

Abstract

Under current law, non-GMO (genetically modified organism) farmers can be in violation of patent infringement if patented GMO pollen from a neighboring property blows onto the non-GMO farm and pollinates non-GMO crops, creating GMO hybrids. I aver the purpose of patent law is to protect the rights to new innovations, not allow patent holders the ability to take advantage of a legal technicality by exploiting non-GMO farmers due to the natural phenomenon of pollen drift.

Allowing GMO pollen to drift freely is analogous to letting hazardous waste flow onto another individual’s property, due to the harm it can create for affected non-GMO farmers. If a GMO operation is begun near an existing non-GMO operation where cross-pollination contamination is reasonably foreseeable, contamination is likely the result of negligence of the GMO farmer not upholding a duty of care, creating a nuisance, and placing a neighboring non-GMO farmer at risk.

If the GMO operation was established first and a contamination occurred, the non-GMO farmer was likely negligent by placing his or her own crop at a reasonably foreseeable risk. In the hypothetical event that bees were introduced into the equation, likely for commercial pollination purposes, a similar duty of care from the party that established the bee operation or established a GMO or non-GMO operation would be expected. This logic could be applied to bees carrying pollen with undesirable genetic information other than patented GMO genes. I also touch on the issues of trespass, negligence per se, ultrahazardous activity, conversion, and burden of proof involving biotic and abiotic vectors. The alternate paradigm is to take reasonable cautions of any potential hazards before establishing any type of farming or apiculture operation to avoid potential charges for negligent behavior.