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Patently Erroneous: How the Supreme Court's Decision in Farm Advantage Ignores Congress and Threatens the Future of the American Farmer

June 2002

Citation: ELR 10698

Author: Joseph Mendelson III

Over 200 years ago, Thomas Jefferson introduced America's first Patent Act.1 The Act introduced the use of intellectual property rights to foster and reward human creativity. However, Jefferson and the Act's other authors were conscious that unchecked extension of these new rights could also harm society by unduly restricting the spread and use of new inventions. Accordingly, they placed limits upon what subject matter could be patented. Jefferson's attention to this matter is exemplified by his action concerning the extension of patentability over products of nature. While aware of the enormous value of new plant varieties to society, Jefferson also understood the legal and scientific bars to patenting these products of nature.2 To that end, the president consciously excluded the patenting of plants from the Act's subject matter. However, the expansion of patent rights over the last 20 years, has overwhelmed specific limitations placed upon patent rights and ushered in a era where living organisms, including plants, have become patentable subject matter.

Despite Jefferson's original intent, since the mid-1980s seed and chemical companies have expanded the use of patent rights over sexually reproducing plants, i.e., seeds, as means of recouping research and development investments and to consolidate control over seed markets. Spurred on by an internal 1985 U.S. Patent and Trademark Office (PTO) decision, corporate use of patents over sexually reproducing plants was sanctioned and has expanded rapidly.3 This expansion of intellectual property rights now sits at the financial heart of the development and commercialization of new genetically engineered plant varieties.

The author is the Legal Director for the International Center for Technology Assessment and the Center for Food Safety, nonprofit organizations located in Washington, D.C. He served as lead counsel in the filing of a BriefAmici Curiae on behalf of the American Corn Growers Association and the National Farmers Union in the Farm Advantage case. He received his B.A. from Colgate University in 1988 and his J.D. from the George Washington University Law School in 1991.

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