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http://ssrn.com/abstract=1593230
 
 

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Post-Sale Restrictions on Patented Seeds: Which Law Governs?


Rita S. Heimes


University of Maine - School of Law

April 20, 2010

Wake Forest Intellectual Property Law Journal, Vol. 10, No. 2, p. 98, 2010

Abstract:     
Since the agrichemical industry entered the business of creating genetically engineered seeds, farming in America has never been the same. Patents on these GE seeds have been reinforced with so-called “license” agreements that accompany their sale to farmers. Failure to abide the terms of these agreements can land a farmer in federal district court defending a patent infringement lawsuit. Several states have passed legislation relating to the terms of these contracts (known in the industry as “Technology Use Agreements” or colloquially as “bag-tag” agreements). Are these state laws appropriate contract regulation or are the agreements, as the industry claims, non-exclusive patent licenses governed by federal patent law? In order to resolve that question, one must first determine whether the transfer of the seeds to the farmer exhausts the patent-holder’s rights in the technology accompanying the seeds. Generally, when someone purchases a patented good she is free to use it, take it apart and rebuild it, and even re-sell it to another without infringing the patent through the “first sale” or exhaustion doctrine. A recent Supreme Court case analyzing the patent exhaustion doctrine calls into question the seed industry’s characterization of the transaction as a mere license to farmers as opposed to a sale of goods. This article explores that issue and whether or not state laws relating to bag-tag agreements are preempted by federal patent law.

Number of Pages in PDF File: 55

Keywords: patents, genetically engineered, genetically modified, preemption, licensing, exhaustion

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Date posted: June 24, 2010  

Suggested Citation

Heimes, Rita S., Post-Sale Restrictions on Patented Seeds: Which Law Governs? (April 20, 2010). Wake Forest Intellectual Property Law Journal, Vol. 10, No. 2, p. 98, 2010. Available at SSRN: http://ssrn.com/abstract=1593230

Contact Information

Rita S. Heimes (Contact Author)
University of Maine - School of Law ( email )
246 Deering Avenue
Portland, ME 04102
United States
HOME PAGE: http://www.lawandinnovation.org
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