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

By Steve Brachmann
March 23, 2017

“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.

The Author

Steve Brachmann

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

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Discuss this

There are currently 5 Comments comments.

  1. Anon2 March 23, 2017 7:11 am

    The bill is a violation of basic justice.

    The damage or potential damage caused by actions of the persons who physically caused the GMOs to grow propagate escape and enter onto the occupants land is the moral responsibility of those people. If the entity that physically caused the damage is the patent holder then of course there is an action against the patent holder, but not as holder of the patent, as the actor who caused the damage.

    A patent holder is someone with rights to an invention, who then, for a fee exchanges the act of refraining from taking the licensee to court. The patentee does not by virtue of the license contract another to make, use, or do anything with the invention, does not thereby engage others to act on its behalf or to DO anything. In the exchange, consideration flows to the patentee, and the patentee agrees to refrain from doing something, the licensee does not agree to positively DO anything.

    Generally, there is no positive legal or moral duty on a patent holder to police the actions of anyone else including someone who used something in which the patent holder’s invention is manifested. The inventor of a wood chipper is NOT in anyway responsible for the idiot who threw a million dollar sculpture, a goat or a person into it.

    A patent holder is simply not, by virtue of holding rights to an invention, in any way responsible for the actions of any others and this would be a travesty of justice, and grossly unconstitutional.

  2. Simon Elliott March 23, 2017 4:48 pm

    I am a big supporter of GMO, but I think that this article downplays the concerns of Oregon farmers in this specific instance. Oregon is the nation’s biggest provider of seed for lawns, and also has a strong industry in special non-GMO crops. It got there through rigorous attention to detail. Both industries are threatened by uncontrolled GMO grasses, as consumers might refuse to buy GMO-contaminated products. This is not just some anti-GMO regulator, but the market. Oregon farmers are right to be concerned about introduction and lack of control of invasive species. Scott could grow its GMO seed in other areas.

  3. Anon2 March 23, 2017 5:17 pm

    SE@2

    Any individual whose property is damaged by another through willful or reckless conduct should have an action against that another. The bill puts the wrong party in the crosshairs and is egregiously unjust.

  4. CraigThumm March 24, 2017 2:26 pm

    Taking into consideration the requirements of the market from Oregon, it could be reasoned that, in this case, the genetically modified grasses could do much harm to the farmers. While their purpose is to be used on golf courses, it is important for proper containment to those golf courses and away from fields and irrigation ditches. Since it is evident that containment of the modified grasses has not occurred, it makes sense to regulate the patent holders in order to try and solve the problem.

  5. Anon March 25, 2017 9:05 am

    Bowman was wrongly decided – and their are natural consequences that follow.