online prescription solutions
online discount medstore
pills online
buy lorazepam without prescription
xanax for sale
buy xanax without prescription
buy ambien without prescription
ambien for sale
buy modafinil without prescription
buy phentermine without prescription
modafinil for sale
phentermine for sale
lorazepam for sale
buy lexotan without prescription
bromazepam for sale
xenical for sale
buy stilnox without prescription
valium for sale
buy prosom without prescription
buy mefenorex without prescription
buy sildenafil citrate without prescription
buy adipex-p without prescription
librium for sale
buy restoril without prescription
buy halazepam without prescription
cephalexin for sale
buy zoloft without prescription
buy renova without prescription
renova for sale
terbinafine for sale
dalmane for sale
buy lormetazepam without prescription
nobrium for sale
buy klonopin without prescription
priligy dapoxetine for sale
buy prednisone without prescription
buy aleram without prescription
buy flomax without prescription
imovane for sale
adipex-p for sale
buy niravam without prescription
seroquel for sale
carisoprodol for sale
buy deltasone without prescription
buy diazepam without prescription
zopiclone for sale
buy imitrex without prescription
testosterone anadoil for sale
buy provigil without prescription
sonata for sale
nimetazepam for sale
buy temazepam without prescription
buy xenical without prescription
buy famvir without prescription
buy seroquel without prescription
rivotril for sale
acyclovir for sale
loprazolam for sale
buy nimetazepam without prescription
buy prozac without prescription
mogadon for sale
viagra for sale
buy valium without prescription
lamisil for sale
camazepam for sale
zithromax for sale
buy clobazam without prescription
buy diflucan without prescription
modalert for sale
diflucan for sale
buy alertec without prescription
buy zyban without prescription
buy serax without prescription
buy medazepam without prescription
buy imovane without prescription
mefenorex for sale
lormetazepam for sale
prednisone for sale
ativan for sale
buy alprazolam without prescription
buy camazepam without prescription
buy nobrium without prescription
mazindol for sale
buy mazindol without prescription
buy mogadon without prescription
buy terbinafine without prescription
diazepam for sale
buy topamax without prescription
cialis for sale
buy tafil-xanor without prescription
buy librium without prescription
buy zithromax without prescription
retin-a for sale
buy lunesta without prescription
serax for sale
restoril for sale
stilnox for sale
lamotrigine for sale

Patent Rights for Self-Replicating Technology

On October 5, 2012, the Supreme Court granted cert. to hear Monsanto Co. v. Bowman. Monsanto is an agriculture company and one of its primary focuses is to develop genetically modified crops that are resistant to glyphosate herbicides such as Roundup® brand herbicide. Herbicide resistant crops allow farmers to spray herbicide over the entire planting field to kill weeds while leaving the crops unharmed. This results in substantial savings in labor costs for weed control. Monsanto owns the patent for the herbicide-resistant plants, the genetically modified seeds for such plants, the specific modified genes, and the method of producing the genetically modified plants.

In the case here, Bowman purchased Monsanto commodity seeds from a local grain elevator in 1999 for a late-season planting. Commodity seeds should only be used as feed or food. Therefore, Bowman was not required to sign the Technology Agreement that would have prohibited him from planting the subsequent generation of seeds. However, instead of using the seeds as feed or food, Bowman planted them. After discovering that the seeds retained the desirable genetic trait, resistance to herbicide, Bowman began to save seeds from each generation of crop for replanting. He also supplemented the seeds he saved with periodic additional purchases of commodity seed. These activities occurred continuously from 2000 to 2007.

The primary issue is whether Monsanto has the rights to regulate the subsequent use and sale of its patented seeds or if that right was exhausted by the first sale of the seeds. The first sale patent exhaustion doctrine states that the first vending of any article manufactured under a patent puts the article beyond the reach of the monopoly which that patent confers. However, courts have recognized exceptions to this general rule including unlawful sale, restricted sale, etc.

Bowman argued that Monsanto’s patent rights were exhausted when the commodity seeds were sold at the elevator as undifferentiated commodity. Monsanto, on the other hand, relied on Monsanto Co. v. Scruggs to argue that the sale from the elevator was not an authorized sale because the Technology Agreement, that whoever grew the seeds Bowman purchased presumably signed, expressly states that the progeny of the licensed seed should never be sold for planting. Therefore, first sale exhaustion doctrine should not apply. Furthermore, Monsanto relied on Monsanto Co. v. McFarling to argue that each generation of seed is a new product, so even if its patent rights were exhausted on the seeds that Bowman purchased, its patent rights on subsequent generations of seeds should be unaffected. The Court of Appeals for the Federal Circuit held in favor of Monsanto on both arguments.

This will be the first chance for the Supreme Court to review the application of the longstanding doctrine of patent exhaustion to the newly emerging issue of self-replicating technology. Self-replicating technology is fundamentally different from other types of intellectual property because its initial research and development is extremely expensive and time-consuming, but since the technology reproduces itself, subsequent reproduction is very inexpensive. This creates two potential problems. First, the buyer can purchase the product once and use subsequent generations to supply all of its own future needs. Second and more importantly, the buyer can also use subsequent generations to compete with the patentee in the marketplace. As a result, patentees must control downstream use to avoid making the first sale of their product prohibitively expensive.

At the federal appellate level, the court has consistently recognized these unique characteristics and has been very generous in terms of broadly construing the exceptions available to release patent holders from the first sale patent exhaustion doctrine in the field of self-replicating technology. Although the Supreme Court has not displayed the same generosity in cases involving non-self-replicating technology, it is still uncertain which approach it will take under the unique circumstances of self-replicating technology. Either way, the decision will undoubtedly have a tremendous impact on the operations of various companies and individuals.


About the Author

Lynn Li

Lynn Li is a Staffer for the Columbia Science and Technology Law Review. She is a 2L at Columbia Law School.
blog comments powered by Disqus