Abstract

http://ssrn.com/abstract=2188618
 


 



Patent Exhaustion and Self-Replicating Technologies: Amicus Brief in Support of Bowman by the American Antitrust Institute


Shubha Ghosh


University of Wisconsin Law School

Peter Carstensen


University of Wisconsin Law School

Randy Stutz


American Antitrust Institute (AAI)

December 12, 2012

Univ. of Wisconsin Legal Studies Research Paper No. 1213

Abstract:     
In Bowman v Monsanto, the United States Supreme Court will review a decision by the Federal Circuit creating an exception to the patent exhaustion doctrine for self-replicating technologies such as genetically modified germplasm propagated through seeds. This amicus brief represents the views of the American Antitrust Institute in support of Bowman, the farmer found liable for infringing Monsanto's patent. The principal argument is that the Federal Circuit's ruling undermines the pro-competition goals of patent exhaustion by creating an exception for an ill-defined and narrow class of technology. The authors of the brief argue that the Supreme Court's 2008 decision in Quanta v LG Electronics applies to the sale of the patented technology embodied in the seed. Not only is Quanta apposite to the facts of the transaction at issue, but Monsanto can be adequately compensated for violations of the terms of the sale through contract law. In this way, both the goals of patent law and antitrust law are harmonized.

Number of Pages in PDF File: 47

Keywords: Antitrust, Intellectual Property, Patent, Agriculture, Law and Policy

JEL Classification: K2

Accepted Paper Series





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Date posted: December 12, 2012  

Suggested Citation

Ghosh, Shubha and Carstensen, Peter and Stutz, Randy, Patent Exhaustion and Self-Replicating Technologies: Amicus Brief in Support of Bowman by the American Antitrust Institute (December 12, 2012). Univ. of Wisconsin Legal Studies Research Paper No. 1213. Available at SSRN: http://ssrn.com/abstract=2188618

Contact Information

Shubha Ghosh (Contact Author)
University of Wisconsin Law School ( email )
975 Bascom Mall
Madison, WI 53706
United States
Peter C. Carstensen
University of Wisconsin Law School ( email )
975 Bascom Mall
Madison, WI 53706
United States
608-263-7416 (Phone)
608-262-5485 (Fax)
Randy Stutz
American Antitrust Institute (AAI) ( email )
2919 Ellicott Street, N.W.
Suite 1000
Washington, DC 20008-1022
United States
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