Who Owns Your Dinner? A Discussion of America's Patented Genetically Engineered Food Sources, and Why Reform is Necessary

Loyola Consumer Law Review, Dec 1010

By Madison Smith, Published on 01/01/10

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Who Owns Your Dinner? A Discussion of America's Patented Genetically Engineered Food Sources, and Why Reform is Necessary

Sources, and W hy Reform is Necessar y W ho Owns Your Dinner? A Discussion of America's Patented Genetically Engineered Food Madison Smith 0 0 Madison Smith Who Owns Your Dinner? A Discussion of America's Patented Genetically Engineered Food Sources, and Why Reform is Necessary , 23 Loy. Consumer L. Rev. 182 (2010). Available at: Part of the Consumer Protection Law Commons Recommended Citation - Article 4 Follow this and additional works at: http://lawecommons.luc.edu/lclr WHO OWNS YOUR-DINNER? A DISCUSSION OF AMERICA'S PATENTED GENETICALLY ENGINEERED FOOD SOURCES, AND WHY REFORM IS NECESSARY Madison Smith* I. Introduction T hmeicUron-oitregdanSistmatesisCopdaetenptraobvlied,"es atnhdat f"uarthlievre hpuromvaidne-smafdoer issuance of patents to persons who invent or discover new or useful "manufacture" or "composition of matter;" -microorganisms constitute "composition of matter" or "manufacture" within meaning of the code.' Thus, since the landmark 1980 Supreme Court case Diamond v. Chakrabarty, thousands of patents on living organisms have been granted to genetically modified food products for human consumption. This Note will briefly introduce patent law and its application to genetically engineered living organisms in the courts, analyzing critical case law from Diamond v. Chakrabarty to the present. Furthermore, this Note will describe the process of genetic engineering and how it is used in our American food crops, as well as current regulatory procedure regarding these foods. Part II will introduce the genetic engineering seed giant Monsanto, whose aggressive patent protection and sizeable market share of genetically engineered seeds has greatly affected and transformed American crops. Part III will introduce AquaBounty's genetically modified salmon, currently awaiting approval from the Food and Drug Administration ("FDA") to *J. D. Candidate, May 2012, Loyola University Chicago School of Law. 1 See 35 U.S.C. § 101 (2010); Diamond v. Chakrabarty, 447 U.S. 303, 309-16 (1980). Who Owns Your Dinner? .1 become the first genetically engineered animal food source available for human consumption. Part IV will discuss the impact these patent protected food sources have on our nation's food supply, analyzing their positive and negative effects on both the marketplace and the consumer. In addition, it will address current trends in Congress and current events that may result in seismic changes in the regulatory structure. Finally, Part V proposes two solutions to the negative aspects of genetically engineered foods: the first is the creation of a single regulatory body; and the second - more important solution - is patent law reform for genetically modified food products. A. Brief History of Patents Patents were developed to ensure that inventors would be compensated for their inventions; such compensation is accomplished by granting inventors the exclusive right to their inventions for a limited period of time.2 Patents give the patent holder a form of monopoly control for twenty years from the date of filing, thus limiting competition.' The United States grants patents for "any new and useful process, machine, manufacture, or composition of matter, of any new and useful improvement thereof."' The United States Code section on plant patents states that any person who invents or discovers a new variety of plant (and asexually reproduces it) may obtain a patent for that plant.s In order to receive a patent, the patented plant must have a distinct characteristic that is different from other plants.' Furthermore, the Supreme Court has interpreted this legislation's purpose as being one that encourages the plant breeding industry. Under patent laws, a patentee has the right to exclude others from making, using, or selling a patented invention. The 2 The Council for Responsible Genetics, DNA PatentsCreate Monopolies on Living Organisms,ACTION BIOSCIENCE (Apr. 2000), http://www.actionbioscience. org/genomic/crg.html. 3 Id. 4 35 U.SC. § 101 (2010). s 35 U.S.C. § 161 (2010). 6 Id. See Diamond,447 U.S. at 319-23. 35 U.S.C. § 154(a)( 1 ) (2010); see also Monsanto Co. v. Scruggs, 459 F.3d 1328, 1338 (Fed. Cir. 2006). patent holder also enjoys the right to license the invention for a limited period of time, 9 charge royalties, 0 and restrict the invention's use in some fields - while permitting it in others - and all at the sole discretion of the patent holder." Given the many benefits bestowed upon patent holders by patent law, it is no surprise that they are also treated favorably in the court system. B. History of Patent Protection The Constitution grants Congress the broad power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This authority of Congress is exercised with the hope that "[the] productive effort thereby fostered will have a. positive effect on society th (...truncated)


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Madison Smith. Who Owns Your Dinner? A Discussion of America's Patented Genetically Engineered Food Sources, and Why Reform is Necessary, Loyola Consumer Law Review, 1010, Volume 23, Issue 2,