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Professor Drew Kershen

Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law

Expert Bio

Professor Drew Kershen teaches courses on agricultural law, legal history, professional responsibility, and water rights at the University of Oklahoma, College of Law. In 1973, he was named a fellow in law and humanities at Harvard University. Kershen is coauthor of Farm Products Financing and Filing Service, written in 1990 with J. Thomas Hardin. Kershen is a member of the Oklahoma Water Law Advisory Commission and the Order of the Coif; he is a past member of the Board of Directors and past president of the American Agricultural Law Association.

Studies, Articles and Answers

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Showing 10 out of 13 results

Question

Q: What is the “Monsanto Protection Act”?

Answered By Professor Drew Kershen - Jul 26, 2013

A: You are likely referring to the Farmer Assurance Provision included in the 2013 federal government Appropriations bill that was passed in March 2013. The provision was put in place to minimize some of the potential effects of burdensome litigation that has been used in the past to work around the well-established regulatory process of the U.S. Department of Agriculture and put a significant economic burden on farmers. Ironically, this provision directly protects farmers, not seed companies―but you wouldn’t know it by how it has been renamed in the media and online by anti-GMO groups. Here is [...]

Other

Question

Q: Does a “patent” allow a private company to own the seeds created?

Answered By Professor Drew Kershen - Jul 25, 2013

A: The simple answer to the question is yes. But the simple answer does not adequately provide an explanation or an understanding of the question. To achieve an explanation and understanding, it is helpful to rephrase the question: Does “intellectual property” allow a private company to own the seed created? Beginning in the early 1900s, scientists began to understand the process of developing hybrid plants. Scientists learned to develop two inbred parent lines that, when crossed, produced hybrid vigo―most often meaning greatly increased yields. Using this scientific knowledge, Henry Wallace, of [...]

Health & Safety How GMOs Are Made

Question

Q: how can the patent holders for Gmo seeds claim perpetual ownership of the productSpecifically if i buy a gmo seed it flowers, fruits gives me seeds which i then proceed to plantHowever by that action im supposedly committing theft is the common understand

Answered By Professor Drew Kershen - Sep 23, 2014

A: I think it helps to understand the answers to the questions by answering the second question first. When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops. You go to a bookstore and purchase a book. The book physically is an item of personal property that you own. You can read the book, sell it to someon [...]

Answered By Professor Drew Kershen - Sep 23, 2014

A: I think it helps to understand the answers to the questions by answering the second question first. When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops. You go to a bookstore and purchase a book. The book physically is an item of personal property that you own. You can read the book, sell it to someon [...]

Business Practices GMOs & Farmers

Question

Q: how can the patent holders for Gmo seeds claim perpetual ownership of the productSpecifically if i buy a gmo seed it flowers, fruits gives me seeds which i then proceed to plantHowever by that action im supposedly committing theft is the common understand

Answered By Professor Drew Kershen - Sep 23, 2014

A: I think it helps to understand the answers to the questions by answering the second question first. When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops. You go to a bookstore and purchase a book. The book physically is an item of personal property that you own. You can read the book, sell it to someon [...]

Answered By Professor Drew Kershen - Sep 23, 2014

A: I think it helps to understand the answers to the questions by answering the second question first. When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops. You go to a bookstore and purchase a book. The book physically is an item of personal property that you own. You can read the book, sell it to someon [...]

Business Practices GMOs & Farmers

Question

Q: Why should seeds of second generation, third generation, four generation and on, be considered intellectual property of the original company that produced the strain in the first place? Based on the court case of Vernon Hugh Bowman, legal president has

Answered By Professor Drew Kershen - Dec 20, 2013

A: To answer these questions, one needs certain background information and context involving law and policy.  After the background information and context, I can address the specific questions that you have asked. While the United States Supreme Court decision in Bowman does create a precedent that allows seed companies to enforce their patents in seeds against farmers who save seeds, the Bowman decision was not a surprise to those who knew intellectual property law.  Why? Seed companies have been able to obtain intellectual property rights in seeds for the last 100 years.&nb [...]

Business Practices GMOs & Farmers

Question

Q: Does it fits in a free market economy that seeds of major food crops can be patented and cause a monopoly situation?

Answered By Professor Drew Kershen - Sep 04, 2013

A: Whether patents, or other intellectual property (e.g. copyrights), that create a monopoly in the invented item fits within a free market economy is a debate in which political economists have been engaged for a long time.  The Founders of the United States engaged in this debate too with some opposed to allowing a monopoly in anything and others, on utilitarian grounds, supporting the creating of a monopoly through intellectual property rights.  Ultimately the Founders decided in favor of intellectual property rights and adopted into the United States Constitution the following prov [...]

Other

Question

Q: Has there ever been any harm or illnesses caused by living near GMO fields documented anywhere in the world? If so, where and what was the harm or illness.

Answered By Professor Drew Kershen - Sep 18, 2013

A: Although I am a lawyer, I pay close attention to claims about GMOs that may give rise to liability for a farmer, a seed company, a biotechnology company, or anyone else. Thus, if anyone anywhere had either claimed or proven a harm or illness from living near GMO fields, I feel confident that I would have heard about this claim through reports of regulatory enforcement or civil liability for damages. The answer to the question is straightforwardly and unequivocally, “No.” There are no such documented claims anywhere in the world. Yes, some activist organizations have published and pr [...]

GMO Basics Health & Safety

Question

Q: If the US Federal Government has classified Genetically Engineered food products as Substantially Equivalent to common food product currently in the market and thus declined to regulate them, how can they be patented? I thought patents were reserved for

Answered By Professor Drew Kershen - Sep 30, 2015

A: To answer this question, I will separate its three questions and answer each question alone.   Question 1:  If the US Federal Government has classified Genetically Engineered food products as Substantially Equivalent to common food products currently in the market and thus declined to regulate them, how can they be patented?   When the FDA reviews a GE food to assess whether it is substantially equivalent, the evaluation is based on the submitted data as showing that the GE food is as safe and nutritious as the common food product.  In other words, the FDA has the tas [...]


Question

Q: how can one search US patent number corresponding to the event name such as MON810?

Answered By Professor Drew Kershen - Jul 06, 2015

A: I suggest that the United States Patent & Trademark Office (USPTO) website is the best place to search for free for information generally and specifically about patents.  The USPTO home page is http://www.uspto.gov.    However, more precisely, your question indicates a desire to access specific patents.  The USPTO has a full-text patent database that you can find at http://patft.uspto.gov.   If you click on this full-text patent database URL, you will see several options.  I suggest you choose the Advance Search option (a boolean search approach).   Wh [...]

Answered By Professor Drew Kershen - Jul 06, 2015

A: I suggest that the United States Patent & Trademark Office (USPTO) website is the best place to search for free for information generally and specifically about patents.  The USPTO home page is http://www.uspto.gov.    However, more precisely, your question indicates a desire to access specific patents.  The USPTO has a full-text patent database that you can find at http://patft.uspto.gov.   If you click on this full-text patent database URL, you will see several options.  I suggest you choose the Advance Search option (a boolean search approach).   Wh [...]

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Question

Q: how can one search US patent number corresponding to the event name such as MON810?

Answered By Professor Drew Kershen - Jul 06, 2015

A: I suggest that the United States Patent & Trademark Office (USPTO) website is the best place to search for free for information generally and specifically about patents.  The USPTO home page is http://www.uspto.gov.    However, more precisely, your question indicates a desire to access specific patents.  The USPTO has a full-text patent database that you can find at http://patft.uspto.gov.   If you click on this full-text patent database URL, you will see several options.  I suggest you choose the Advance Search option (a boolean search approach).   Wh [...]

Answered By Professor Drew Kershen - Jul 06, 2015

A: I suggest that the United States Patent & Trademark Office (USPTO) website is the best place to search for free for information generally and specifically about patents.  The USPTO home page is http://www.uspto.gov.    However, more precisely, your question indicates a desire to access specific patents.  The USPTO has a full-text patent database that you can find at http://patft.uspto.gov.   If you click on this full-text patent database URL, you will see several options.  I suggest you choose the Advance Search option (a boolean search approach).   Wh [...]

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