Legal Aspects of Implementing

Vertical Farming Solutions

Imagine a building that’s not for people sitting in offices increasing their carbon footprint, but instead, inhabited by row upon row of leafy plants. The benefits of vertical farming.

Legal Aspects of Implementing Vertical Farming Solutions

I’m here with Gary Nissenbaum of the Nissenbaum Law Group and we’re discussing the legal aspects of implementing advanced agriculture vertical farming solutions. Gary, why do you think it’s necessary for the United States to implement a vertical farming solution?

It’s because of where we’re living. The vast majority of people are moving into the larger urban areas. This is something that has been going on for well over a century. It has speeded up now and, if anything, it is a movement that is reflected worldwide, not just in the United States.

So the question is this: are we going to continue to have a model that relies upon farming that is horizontal, on acres and acres of land that then involves a high carbon footprint? And that footprint involves not just fertilizer, in terms of the animals, the cows and so forth on the farm, but also the trucks that are necessary, the planes that are necessary to move the food to where the people are.

The vertical farming model is far more environmentally friendly, not just in terms of how the food is grown, but also in terms of reducing the transportation from the farm to the end-user, which of course reduces the carbon footprint.

What do you think is the most pressing legal issue confronting the advanced agriculture vertical farming business community right now?

Regulations and Statutes Not Written with Vertical Farming in Mind

Well, the interesting aspect of that question is that you would think it would be something along the lines of the technology to grow vegetables and fruits and things like that without soil, without traditional fertilizer. But that’s not the main thing that is challenging this industry. I would urge that the main thing challenging this industry is that the regulations and statutes concerning land use, concerning zoning, concerning how wholesale and retail establishments distribute goods to end-users, were not written with this in mind.

“A building that is not people sitting in offices… but row upon row of leafy plants.”

Imagine a typical urban setting where the zoning laws and the land use laws are pretty strict, if for no other reason than space is at a premium. Putting in place a solution that has vertical usage of a building that’s not people sitting in offices behind desks but is row upon row upon row of leafy plants that are then going to be eaten, you would imagine that there will be areas of applicable regulation that simply never envisioned this and could very well hold it up with red tape.

The solution is for the attorney to see these things coming, discuss this with the regulatory body and the attorneys for the municipality and see if there are ways to cut through all that and implement the solution seamlessly.

What might be some of the unintended benefits of vertical farming?

One of the key benefits would be this: in an era of climate change, when there are obviously going to be some kinds of restrictions on the use of cars and trucks and planes that are going to need to be implemented if the increase in greenhouse gas emissions is ever going to be stopped, this is a way of feeding people on a massive scale without transporting the food that far. And I think that is a big part of what is going to be an unintended benefit.

Unintended Benefits of Vertical Farming

I also think that the idea of vertical farming ultimately will be scalable. In the future I imagine that the technology will advance to such an extent that people will be able to generate their own food in their home, in their own basement. And that probably is where this industry ultimately ends up. Very similar to solar energy generation where people put solar energy panels on their roofs and generate their own energy.

We may have situations where clients will enter this space—entrepreneurs who will hire an attorney to see if they can create a model in which they will distribute the vertical farming solution so that people can grow food in their own homes.

What are some of the intellectual property issues involved in implementing advanced agricultural solutions?

You’re dealing with a technology which is being licensed on some level, along with a process which may not be subject to complete intellectual property protection. An example is aeroponics that involves using LED lights to bathe plants that are not in soil but are in a nutrient medium. So if you can imagine this, there’s no soil. No fertilizer. These plants never see the sun. They’re not outside at all. Is that legally protectable?

Intellectual Property Protections for Advanced Agriculture Solutions

Well, there are all sorts of issues relating to what part of that is protectable and what part is not. And those protections basically break down into two categories. Category one would be such things as patents, licenses for the patents, royalties for the patents. The whole idea of the extent to which the law is protecting this process, if it does in a certain instance.

But the second issue, which is perhaps even more practical for most clients in this space, is the extent to which there are contracts that create special intellectual property protections, such as non-compete clauses, such as confidentiality restrictions, such as changes to the manner in which enforcement mechanisms are implemented so that we don’t go to court, but instead utilize alternate dispute resolution, such as arbitration or binding mediation or some other model.

Those, I think, are the real challenges for the intellectual property lawyer going forward.

Thank you very much.

Thank you.

Legal disclaimer: The information contained in this interview does not constitute legal advice, nor a legal opinion. It should not be relied upon in any specific situation. The reader is urged to consult an attorney of their choosing with respect to any legal question they may have.

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Looking for advice?

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Contact the Nissenbaum Law Group to schedule an appointment at 908-686-8000 or feel free to use the following form to e-mail us. Please include as much information as you can to ensure that we are able to handle your request as quickly as possible.

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