Litigating seed and plant patents is unique. It brings many interesting proof issues to the forefront, not commonly occurring in other types of patent cases. For example, plant breeding records are needed and deciphering them often becomes critical, both for proof of copying and for proof of wilful infringement. These records are unlike most business records of research in other industries. Often written in what seems like hieroglyphics, they are indecipherable without witness testimony assistance. They are, however, essential to understanding how an accused infringer arrived at the parental lineage of the accused plant or seed product. The absence of such records can often be an alarm signal of false assertions.
The fact that the patentable subject matter is alive and therefore capable of self-replication also raises interesting legal questions. The closest analogous doctrine in current patent law is Repair v Reconstruction. In the inanimate object world of machines, one may repair a patented object if the original use is rightful, but one may not reconstruct it once it is expended. Reconstruction is infringing. Is reproduction by a plant similar to reconstruction and therefore infringing? Is there room in the patent law for some doctrine relating to accidental and unintentional infringement? For example, what if an infringing act occurs because of pollen drift? Do we need legislation to prevent species contamination from genetically modified organisms (GMOs) to naturally occurring plants? If we do, how can it be implemented and where? Was the Star Link situation a harbinger of difficulties to come? How and in what manner should GMO fields be isolated? Are we already too late to preserve species integrity?
In the plant world, compliance with 35 U.S.C. §112 is often achieved by depositing seed with a legitimate depository such as the American-Type Culture Collection in Rockville, Maryland. These seed deposits have been held to satisfy 35 U.S.C. §112. Members of the public can access a competitor's seed deposit by simply paying a fee to get 25 seeds. What may those seed deposit samples be legitimately used for? Can they be used only to check whether someone is an infringer? Can they be used to grow and then bulk up the amount of seed product that one has? Can they be used to confirm what in fact was patented? What if the seed is both patented and protected by a PVPA that has a research exemption? Can it then be used in research in a breeding programme? All of these and many more questions will have to be answered in the exciting years of seed patent law litigation ahead of us.
As most of you know, our Constitutional Clause is both a patent clause and a copyright clause. It makes specific reference to 'inventors', by securing for limited times to authors and inventors (emphasis added) the exclusive rights. Can one really be an inventor if the thing you say you invented is not something you can make from scratch? No one can make a plant or mouse or any other living organism from scratch. Is it therefore possible that the product of nature doctrine as originally conceived was correct? Perhaps unless someone can demonstrate the capability of going into the laboratory, starting from nothing but chemicals and ending up with a life form, it does not meet the Constitutional standard? An interesting thought and perhaps another Supreme Court case in the making.
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