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:
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WHO OWNS YOUR-DINNER? A
DISCUSSION
OF AMERICA'S PATENTED
GENETICALLY ENGINEERED FOOD
SOURCES, AND
WHY REFORM IS
NECESSARY
Madison Smith*
I. Introduction
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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)