Christopher W. Dawson · June 2012
80 GEO. WASH. L. REV. 1174 (2012)
In Diamond v. Chakrabarty, 447 U.S. 303 (1980), the Supreme Court announced that utility patent protection under 35 U.S.C. § 101 extends to living, human-made organisms, and the Court subsequently confirmed that such protection extends to newly developed plant breeds in J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001). Under the authority of these holdings, producers of genetically engineered (“GE”) seeds may now use patent protection to prohibit farmers from seed saving; i.e., saving seeds from a portion of each year’s harvest to replant in their fields the following year. This practice by the major GE seed manufacturers not only unjustly prohibits farmers from practicing centuries-old farming traditions, but also eliminates the positive contributions small farmers provide to farming communities and the nation’s food supply. This Note argues that an exemption should be made to the Patent Act to allow small farmers to continue the traditional farming practice of seed saving. This Note first recognizes that an optimal exemption must balance the interests of small farmers (i.e., continuing the tradition of seed saving) with those of society (i.e., incentivizing GE seed manufacturers to continually produce new seed varieties). This Note then proposes that a balance could be achieved by providing a prior-user defense to patent infringement for small farmers who have practiced seed saving prior to the effective filing date of an asserted patent, mirroring the business method first inventor defense found in 35 U.S.C. § 273(b). A prior-user defense is an efficient solution to the problem, as it both eliminates unnecessary transaction costs associated with relicensing GE seed to small farmers each year and relieves manufacturers of the burden of policing small farmers’ use of the patent-protected seed. Finally, this Note addresses counterarguments to the enactment of such a defense.
