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doi: 10.1177/0270467607300638pmid: N/A
Taking into account the historic transitions and progressions in agricultural science, this article examines the emergence of the phenomenon of agricultural biotechnology. It identifies pivotal sites of tension between agricultural biotechnology and alternative approaches to agriculture. The article identifies two distinct sources of contemporary social tension around agricultural science. First, it identifies the epistemological fault line and examines how the latter is promoted by intellectual property. Second, it spotlights the gene-wandering syndrome—a byproduct of genetic modification—and evaluates its impact on the escalating tension in our agricultural communities. Drawing from recent court decisions in Canada, the article recognizes the present urgency for a better jurisprudence and practical regulatory policy on aspects of agricultural biotechnology to mediate current tensions in those communities. It argues that judicial and policy response must be predicated on recognition of agro-epistemic pluralism and an understanding of broader socioeconomic impact of agro-biotechnology on alternative forms of agriculture.
Phillips, Peter W. B.; Smyth, Stuart
doi: 10.1177/0270467607300639pmid: N/A
Discussions of socioeconomic liability and compensation must necessarily start from an understanding of the socioeconomic, legal, and scientific basis for identifying, assessing, managing, and apportioning blame for hazards related to innovations. Public discussions about the nature of the liability challenge related to genetically modified (GM) crops and other modified organisms have focused less on direct, traditional health, public safety, technical, or environmental failures (e.g., innovations that generate hazards directly for users or indirectly to bystanders) and more on socioeconomic concerns, such as comingled product that offends product quality standards. This article examines the theoretical and legal underpinnings of the current risk analysis framework used in most Organization for Economic Cooperation and Development countries and uses it to assess two areas of significant controversy—the release of herbicide-tolerant canola and flax varieties in Western Canada. The article offers lessons for the management of liabilities arising from the introduction of GM crops.
doi: 10.1177/0270467607300633pmid: N/A
As the sciences of biotechnology, synthetic biology, and nanotechnology develop, questions about liability for harms caused by self-replicating inventions will arise increasingly often. Although negligence, nuisance, and other torts may be relevant in such circumstances, trespass may be the more appropriate cause of action. First, the author explores doctrinal hurdles facing plaintiffs alleging biotrespass. To overcome concerns about the metaphysicality of molecular biotrespass, the author draws analogies to “cybertrespass.” To confront the problem of suing patent licensors for the actions of their licensees, the author makes reference to principles of landlord-tenant law. Well-established laws concerning wandering animals shed light on the policies underlying biotrespass. In the second part, the author examines such policies in further detail and considers the purpose of transporting property metaphors into bio/nanospace. The article concludes that biotrespass can be a viable cause of action, if crafted carefully and understood properly.
doi: 10.1177/0270467607300641pmid: N/A
This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive limited-term monopoly right entails a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions.
doi: 10.1177/0270467607300704pmid: N/A
The law of patents has long struggled with the status of intent in determining liability for infringement. This struggle has recently been given a sharper edge by the emergence of biotechnological products with the inherent ability of auto-dispersal and regeneration. The question thus is whether a person on whose backyard a patented genetic organism has grown without the active intervention of that person is liable in infringement to the patentee of that organism. This article examines the ramifications of the legal conundrum and argues that on a proper construction of the theories of liability in patent law intent to infringe is necessarily crucial if the nature of the subject matter of the patent makes it unjust and absurd to argue otherwise.
doi: 10.1177/0270467607302688pmid: N/A
What is the likelihood of controlling technology by means of the law? In traditional societies, the law was deeply embedded in, and dependent on, culture (the totality of human creations for making sense of and living in the world). Industrialization required a complete restructuring of both technology and society, thus engulfing all traditions in a flood of new situations for which there were no precedents. This necessitated a growing reliance on reason at the expense of culture, thereby creating a rational and technical order that evolved with less and less reference to sense (i.e. experience and culture). It is within this context that recent legal transformations must be understood as participating in an order of non-sense. This bodes ill for protecting and helping to ensure a livable, sustainable human future.
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