Hastings Law Journal, Vol. 58, No. 1 (November 2006), pp. 87-151. Originally uploaded at SSRN

Abstract

In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide variety of costs that must be identified before determining whether liability for genetic pollution is socially desirable. "In the rest of this Article, we demonstrate that existing legal doctrines support the adoption of the framework we advocate. In order to do that more effectively, we briefly provide the background science of genetically modified plants and how their patented characteristics can be adventitiously transferred, and we also highlight the consequences of pollen drift by canvassing the multi-billion dollar market for non-GMO crops. Then, we discuss the common law nuisance and trespass doctrines that may provide farmers with an affirmative cause of action when pollen drift causes a reduction in the value of a planted crop. Finally, we discuss patent law defenses that may be available to patent infringement defendants who characterize themselves as victims of pollen drift (bystanding farmers). We find significant opportunities for true bystanding farmers to rebut patent infringement claims in the voluntary act doctrine and in the doctrines of patent misuse, unclean hands, and volenti non fit injuria. In the spirit of truly descriptive law and economics analysis, we conclude that applicable common law and equitable doctrines appear to be efficient.