Q: What’s the difference between patented plants and other patented things?
A: The plants can make copies of the “patented” invention on their own without help from anyone.
This is a fundamental distinction that the courts have apparently overlooked. The crucial difference between plants and other inventions is the fact that it doesn’t require any human action to replicate the patented invention. The plant, on its own, will copy the covered invention as it goes about its natural life. If Monsanto wants to sue someone, sue the plant; after all, it was the life-form that exercised Monsanto’s patent.
The courts should recognize that when a farmer takes no action (the copy of the patented item was made by a plant), then the farmer is in no way at fault for winding up with a patented item on their land. Like I said, Monsanto should sue the plant.
Plants propagate; it’s a fundamental requirement for life, and if a plant with patented genes propagates on its own, then there cannot be a finding of patent infringement. If there is, then the lawyers and judges have lost touch with reality; go out and garden, then come back and judge again.
If a plant “inventor” really wanted to prevent Mother Nature from going about her business and making copies, then the inventor can engineer sterility into their plants along with whatever other traits they’re trying to enhance. Otherwise, the plants themselves, without any help from us, will go about their business and replicate across the landscape.