Anticipating and Reducing the Unfairness of Monsanto’s Inadvertent Infringement Lawsuits: A Proposal to Import Copyright Law’s Notice-and-Takedown Regime into the Seed Patent Context

Monsanto, the world’s leading agricultural biotechnology company, is often criticized for its aggressive, farmer-directed litigation efforts to protect proprietary, genetically modified seed technologies through patent litigation lawsuits. Farmers fear that such litigation efforts could be based on “inadvertent infringement,” where farmers—typically those who grow organic produce or who simply do not want to use genetically modified seed—unintentionally plant and impermissibly use Monsanto’s patented seed technologies after the company’s seed products are transferred to their land by natural factors. This Comment clarifies the current landscape of seed patent protection and argues that while Monsanto has a legal right to sue farmers for “purposeful infringement”—where farmers knowingly breach Monsanto’s licensing restrictions on its seed products—it is unfair for this right to wholly extend to inadvertent infringement. To mitigate the risk that Monsanto might bring inadvertent infringement lawsuits against farmers who are merely victims of genetic drift, this Comment proposes to import copyright law’s digital notice-and-takedown regime into the seed patent context to protect inadvertent infringers, without stripping Monsanto of its patent rights.