Hysteria over creeping bentgrass leads to Oregon bill targeting GMO patent owners

“Agrostis stolonifera” by Matt Lavin. Licensed under CC BY-SA 2.0.

In early February, a bill was introduced into the Oregon House of Representatives, which could make the state seem much less friendly to patent owners, specifically those holding patents covering genetically modified organism (GMO) technologies. The state measure is a response to the escape of genetically modified creeping bentgrass from field trials and the concerns that has raised for property owners in Oregon.

In 2003, creeping bentgrass genetically modified to have a higher tolerance for the herbicide glyphosate escaped from production fields and continues to grow along irrigation ditches in Jefferson County, where agriculture is an important industry. The bentgrass, developed by Marysville, OH-based lawn and garden product developer Scotts Miracle-Gro Company (NYSE:SMG) for use on golf courses, has increased fears among farmers in the community over whether the grass could clog irrigation ditches or cause them to lose business from nations that won’t accept crop shipments which have trace amounts of GMOs. In March 2016, a public meeting involving local government officials, including irrigation district officials, allowed farmers to voice their displeasure with an agreement reached between Scotts and the U.S. Department of Agriculture (USDA) which some charged was an effort by Scotts to renege on their commitment to fix the problem.

While that situation continues to play out, House Bill 2739 (HB2739), introduced into the Oregon House on February 1st, would give property owners a legal mechanism for going after a GMO developer like Scotts whose products enter the larger ecosystem. If passed into state law, it would allow Oregon property owners and lawful occupants to bring a cause of action against a patent owner for GMOs present on land without permission. It would also allow the court to award prevailing plaintiff costs, attorney fees and treble economic damages.

Worldwide, GMOs are grown on nearly 180 million hectares of land according to statistics published by the online data portal Statista. The United States represents a major chunk of that acreage, accounting for more than 70 million hectares of GMO crops with corn and soybean crops making up the bulk of what is planted in America. Although the question of whether GMO patent owners could be sued for escaped products hasn’t been answered in federal court, a 2013 decision by the U.S. Supreme Court in Bowman v. Monsanto Co. sided with GMO developer Monsanto Company (NYSE:MON) in finding that the patent exhaustion doctrine doesn’t allow a farmer to reproduce patented seeds without the patent owner’s approval. If the federal judiciary believes that a GMO producer’s patent rights are equal to its responsibilities in not trespassing upon the property rights of others, this state law could create an interesting dilemma if a case appeal from Oregon Supreme Court was ever granted writ by SCOTUS.