Academic journal article Boston College Law Review

Remaking Making: Integrating Self-Replicating Technologies with the Exhaustion Doctrine

Academic journal article Boston College Law Review

Remaking Making: Integrating Self-Replicating Technologies with the Exhaustion Doctrine

Article excerpt


In 2013, seventy-five year old Vernon Hugh Bowman, a small-scale farmer from Indiana, faced Monsanto, one of the most dominant agricultural biotechnology companies in the world.1 The case was litigated for four years before it reached the U.S. Supreme Court.2 The case presented a unique issue: self-replicating technologies, such as Roundup Ready seeds, can independently reproduce themselves with minimal human intervention.3 The question was whether someone who buys the patent-protected Roundup Ready seeds can reproduce the seeds without the patent holder's consent.4 The Court was tasked with determining how to apply existing patent law doctrines to a situation that could not have been fathomed at the time the principles were established.5 The dispute also highlighted longstanding tensions within patent law between the right of inventors to exclusively profit from their creations and the rights of purchasers after a legitimate sale.6

The difficulty of applying patent law to new technologies was initially apparent in the Organic Seed Growers's Association's ("OSGA") lawsuit against Monsanto in 2012.7 There, OSGA sought to invalidate Monsanto's patents and challenge future infringement liability.8 Organic Seed Growers's primary claim was that farmers could be held liable as innocent infringers, bringing attention to the merits of patent infringement claims in relation to self-replicating technology.9 Currently, liability under patent infringement does not require that an infringer have knowledge that a violation has occurred.10 However, whether patent infringement should use a strict liability standard is debatable, since the patent statute does not directly speak to the issue.11 Ultimately, Organic Seed Growers & Trade Ass'n v. Monsanto Co. highlighted the fact that self-replicating technologies have the ability to create copies of them- selves with minimal intervention and, consequently, the traditional patent principles do not neatly apply.12

This inevitable issue again came to fruition in Bowman v. Monsanto Co.13 On its face, Bowman's argument seemed ill-considered and not one that would be granted a writ of certiorari by the U.S. Supreme Court.14 His argument went directly against traditional patent law doctrines, reasoning that purchasers of a patented article should be able to make unlimited copies of the product.15 Despite what seemed like a meritless argument, Bowman's situation was unique because of the kind of patented article at issue: a genetically modified soybean that can independently self-replicate by replanting its seeds.16

The stakes were extremely high-numerous organizations and individuals filed amicus briefs, emphasizing the potential consequences ofthe decision.17 On the one hand, organizations such as the American Seed Trade Association, CropLife America, and the American Intellectual Property Law Association submitted amicus briefs in support of Monsanto's position, arguing that a decision in favor of Bowman would not only contradict traditional patent law principles, but also have a negative impact on the biotechnology industry.18 On the other hand, organizations such as the American Antitrust Institute and the Public Patent Foundation supported Bowman's position, emphasizing the policy implications of the case and the unfair advantage companies like Monsanto have against small farmers.19

The Court essentially had two choices.20 If it held in favor of Monsanto, the decision had the potential to significantly restructure the relationship between farmers and companies that sell seeds.21 But, if the Court decided to se- verely limit the rights of patent holders in favor of the farmers, a multibilliondollar industry could be drastically transformed.22 Ultimately, the facts presented in Bowman were specific enough to allow the Court to rule narrowly, concluding that the exhaustion doctrine did not apply.23 The Court explicitly left open the possibility that a more technologically advanced self-replicating invention could warrant a contrary decision in the future. …

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