Should the stray animals defense be applicable to plant patent infringement?
ΒΆ 32 Schmeiser argued the stray animals defense was analogous and applicable to his case.133 The stray animals defense is a property defense, which states that a person is strictly liable for damage done by a trespassing animal that he or she owns.134 In addition, offspring will belong to the person whose land has been trespassed.135 Therefore, if applied in a patented seed case, not only would the infringer not be responsible for damages of the stray seed, but the farmer could also recover for trespass and interruption of business in addition to keeping the infringing plants.136 Courts do not allow persons who trespass willfully with their animals to benefit from their willful conduct.137 The courts in Schmeiser concluded that licensing agreements, monitoring of possible infringers, and removal of unintended infringing plants is sufficient action to support the conclusion that Monsanto controlled its patented gene.138 Monsanto knew it could not prevent seed from spreading.139 But shou
