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Rowe on Patents & GM Food

By Lawrence Solum

Elizabeth A. Rowe (University of Florida - Fredric G. Levin College of Law) has posted Patents, Genetically Modified Food, and IP Overreaching (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:

Genetically engineered plants and animals have become and will continue to constitute a large part of the food we consume. The United States is the world?s largest producer of genetically modified foods, making American consumers the most exposed population to these products. Agricultural biotechnology patents spur and support innovation. Accordingly, patent law is one of the main contributors to this phenomenon that has changed not only the kinds of food we eat, but the nature of the agri-business industry that produces these foods.

This Article takes on an area of concern involving the patenting of food that has remained unexplored: the effect on independent research and scientific inquiry. There is currently a void in the scientific knowledge relating to the effects of genetically modified foods on human health and the environment. Patent law perpetuates that void by allowing patent holders to control and restrict independent research in the area. This further exacerbates the problem of incomplete information, and ultimately threatens public health and safety. As the editors of Scientific American Magazine have argued, ?when scientists are prevented from examining the raw ingredients in our nation?s food supply or from testing the plant material that covers a large portion of the country?s agricultural land, the restrictions on free inquiry become dangerous.? Accordingly, the Article explores whether these research restrictions are contrary to the public interest and inconsistent with the underlying goals of the patent law.

The analysis, while focusing on the illustrative problem with genetically modified foods, wrestles with a broader, recurring tension in patent policy. How do we reconcile patent rights with the public interest, when such rights threaten public health and safety? For instance, the patenting of human genes raises similar questions, and has received much attention. This Article, for the first time, however, tackles the research restrictions associated with the patenting of genetically modified foods, and places it in the larger context of intellectual property overreaching. It concludes that, on balance, the public interest in promoting independent research on the health and safety effects of foods should outweigh the patent holder?s interest in controlling the state of adverse information available about its product.

Full post as published by Legal Theory Blog on September 28, 2010 (boomark / email).