Who Owns GMOs?

By: Brian Wilmans

Genetically modified organisms (GMO) have been around since the early 1970s and have steadily grown to impact all forms of commerce. From food to healthcare, the growing impact of GMOs has been felt around the world but very heavily in the United States specifically. As the landmass and population of the U.S. are significantly larger than that of most other countries and most of its farming is done on a larger, industrial scale, the U.S. has leaned more heavily on the use of GMOs to provide security for the country’s food supply.[1] In the U.S., it is estimated that over ninety percent of crops are genetically modified and that up to ninety-five percent of meat and dairy products feed on genetically modified crops.[2]

This has led to questions surrounding the ownership of those GMOs. If the organism could be obtained naturally, how do you determine that someone is the owner?

The right to obtain and enforce a patent is an enumerated constitutional right, with the first patent approved in 1790.[3] Patents for GMOs are the same as any other patent filed, with the total protection on one lasting around 20 years.[4] Once GMOs were invented and grew in popularity, courts were called upon to create a clearer outline of what can go into a patent relating to GMOs. Rulings in the 1970s and 1980s determined that there was no distinction necessary for living versus non-living things for the purposes of patent law, creating clarity that GMOs can be patented like any other product.[5]

These rulings led many large biotechnology companies that produce GMOs to enter into complex licensing agreements with farmers for the use of the product the company created. Those actions led the law to create enhanced specificity in the licensing agreements, detailing how the GMOs may be used by the licensee through actions such as consumption, sale, feeding, or replanting.[6] Thus, complexity in the patent infringement field increased significantly, as well as in relation to cross-contamination. If a farmer plants a field without GMOs next to another farmer who does use GMOs, and the fields get cross-contaminated, can the owner of the GMO patent sue the farmer for patent infringement? If a farmer plants flowers that are genetically modified and worker bees use that pollen to pollinate another farmer’s flowers miles away, can the owner of the patent sue that farmer for patent infringement? These are the kinds of questions modern courts have had to deal with.

Bowman v. Monsanto Co. gave the Supreme Court the opportunity to provide some guidance on these issues.[7] The issue in the case was similar to that faced by farmers around the country in that an industrial farm, using GMOs, cross-contaminated that of a local farmer who was not using GMOs.[8] The court held for the industrial farm, saying it had the exclusive patent right to the genetically-modified crop, setting a precedent in which the party with the patent right will be the one who will win these types of cases.[9]

This precedent is a concerning one, as now there will be less market space for smaller farmers. They have little legal recourse if there is accidental cross-contamination, and it specifically makes it difficult for organic farmers to do business, as they will have to be extremely careful about the presence of pesticide and GMO-utilizing farms near their own crops.

The general nature of the patenting of GMOs is therefore fairly clear, but the future impact of GMOs legally is not. As further scientific development is done with smaller and less noticeable genetic edits being made, the ability to describe the invention as novel, and therefore obtain a patent, may decrease.[10] The onus will be on the courts and on the United States Patent Office to diligently work through patent applications to make sure that new genetically modified organisms are truly “novel” in the changing biotechnology landscape.

 

[1] What GM crops are currently being grown and where, The Royal Society, https://royalsociety.org/news-resources/projects/gm-plants/what-gm-crops-are-currently-being-grown-and-where/#:~:text=Among%20the%20countries%20growing%20GM,Mha)%20are%20the%20largest%20users (May, 2016).

[2] GMO Crops, Animal Food, and Beyond, U.S. Food & Drug Administration, https://www.fda.gov/food/agricultural-biotechnology/gmo-crops-animal-food-and-beyond (last visited Jan. 2, 2025).

[3] Milestones in U.S. Patenting, U.S. Patent and Trademark Office, https://www.uspto.gov/patents/milestones#:~:text=The%20first%20U.S.%20patent%20was,Washington%20signed%20the%20first%20patent (last visited Jan. 2, 2025).

[4] 35 U.S.C. 154(a)(2).

[5] Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980).

[6] See Showmaker v. Advanta USA, Inc., 411 F.3d 1366, 1367 (Fed. Cir. 2015).

[7] Bowman v. Monsanto Co., 569 U.S. 278, 281 (2013).

[8] Id.

[9] Id. at 298.

[10] Board on Agriculture, National Research Council, Genetic Engineering of Plants: Agricultural Research Opportunities and Policy Concerns 75 (National Academy Press 1984).