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Writing -
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Given the rapid and continuing advancements in biotechnology, synthetic biology and nanotechnology, questions of liability for "biotrespass" will continue to arise. This article highlights an emerging legal issue at the intersection of science, technology and society.
Recent Canadian cases concerning biotechnology companies' liability to farmers harmed by the spread of genetically modified seeds have neither adequately decided nor correctly considered the issue. Although the torts of nuisance and negligence may be appropriate in some circumstances, I argue that trespass might be considered as a relevant cause of action. I identify the doctrinal and practical obstacles to adapting the legal principles of trespass to accommodate advances in biotechnology. Those obstacles include i) the meta-physicality of molecular trespass; ii) the liability of patent licensors for the actions of licensees; and iii) the relevance of intervening forces to the question of directness. I show how those obstacles can be overcome by drawing analogies to “cybertrespass”, landlord-tenant law, and well-established laws concerning strict liability for wandering animals. The paper concludes that biotrespass can be a viable cause of action, if crafted carefully and understood properly.
An amended final version of the article published in the Bulletin of Science, Technology and Society, Vol. 27, No. 4, August 2007, 287-300, is available through Sage Publications here. A close-to-final version is available to download right here. The paper can also be downloaded from SSRN here or bepress here.
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