Thursday, November 8, 2012
Posted by D. Daniel Sokol
Daryl Lim, The John Marshall Law School explains Rebooting the Bean.
ABSTRACT: This Article discusses how the advent of genetically modified seeds challenge patent and antitrust policy norms, illustrated most vividly by the patent license restrictions employed by the chief purveyor of this seed technology – Monsanto Company – and the litigation surrounding those restrictions. The Federal Circuit has repeatedly endorsed Monsanto's claim against farmers who use its seeds on the basis that its rights continue in the progeny seeds bearing that technology. Against the Solicitor General's advice, the Supreme Court has recently accepted a farmer's petition to consider if this view of patent exhaustion is contrary to the Court's own decision in Quanta. The outcome of that decision could have profound effects on other technologies with self-replicating features. Monsanto has also attracted the scrutiny of the Justice Department and is defending itself against antitrust suits by DuPont alleging that its prohibitions against trait stacking are anti-competitive. The Article considers one of the most critical issues facing the agricultural sector today: have courts gone too far in protecting the patent rights of pioneer biotech companies like Monsanto? The discussion looks at how parallel litigation in industries as diverse as software and pharmaceuticals might inform the debate on balancing the rights of patentees of agricultural inventions against the rights of growers fighting to preserve their time honored rights and competitors locked in a battle for agricultural supremacy for the crop fields of America and beyond.