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Home Archive Volume 62 Volume 62, Issue 3 COMMENT: Gone with the Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies
COMMENT: Gone with the Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies

By Jessica Lynd | 62 Am. U. L. Rev. 663 (2013)

Genetically modified (GM) seeds are a self-replicating patented technology, which through pollen drift can contaminate neighboring crops, leaving the contaminated farmer liable for patent infringement.  When pollen drift occurs, the patent holder should not be entitled to enforcement rights.  This is because the self-replicating patented organism has itself caused the infringement and has simultaneously failed the moral utility test. Furthermore, patent enforcement should be void under the doctrine of ex turpi causa non oritor actio when infringement arises from unlawful trespass or nuisance caused by the patented organism.

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