Abstract

http://ssrn.com/abstract=2245887
 


 



Food for Thought: Genetically Modified Seeds as De Facto Standard Essential Patents


Ryan G. Vacca


University of Akron School of Law

Benjamin M. Cole


Fordham University, Gabelli School of Business

Brent J. Horton


Fordham University Schools of Business

March 12, 2014

85 University of Colorado Law Review 313 (2014)
U of Akron Legal Studies Research Paper No. 13-07

Abstract:     
For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, (2) impracticability, and (3) necessary to fulfill a basic need. Based on the approaches used by courts and standard setting organizations in licensing standard essential patents in technological fields such as cell phones and software, designation of some GM seeds as standard essential patents allows the courts to imply a license from patentees to farmers on reasonable and non-discriminatory (RAND) terms. Doing so shifts the case from a tort-based patent infringement suit to a breach of contract dispute and alters the damages regime from one based in compensation, deterrence, and punishment (a tort approach) to one based solely in compensation (a contractual approach). As a result of this novel proposal, the damages calculations in these suits return to economic reality.

Number of Pages in PDF File: 64

Keywords: genetically modified seeds, GM seed, Monsanto, patent, damages, standard essential patent, RAND, FRAND, reasonable royalty, farm, farming, infringement, contract, tort, license, established royalties, Bowman, Ralph, plants, soybean, cotton, herbicide, Roundup, farmer, SSO, standard setting, standard

JEL Classification: K00, K10, K11, K12, K19, K30, K39, Q00, Q16, Q19

Accepted Paper Series


Download This Paper

Date posted: April 11, 2013 ; Last revised: March 13, 2014

Suggested Citation

Vacca, Ryan G. and Cole, Benjamin M. and Horton, Brent J., Food for Thought: Genetically Modified Seeds as De Facto Standard Essential Patents (March 12, 2014). 85 University of Colorado Law Review 313 (2014); U of Akron Legal Studies Research Paper No. 13-07. Available at SSRN: http://ssrn.com/abstract=2245887

Contact Information

Ryan G. Vacca (Contact Author)
University of Akron School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
Benjamin M. Cole
Fordham University, Gabelli School of Business ( email )
1790 Broadway, Suite 1127
New York, NY 10019
United States
646-312-8261 (Phone)
646-312-8295 (Fax)
HOME PAGE: http://www.bnet.fordham.edu/bmcole/

Brent J. Horton
Fordham University Schools of Business ( email )
464 Faber Hall
Bronx, NY 10458
United States

Feedback to SSRN


Paper statistics
Abstract Views: 324
Downloads: 55
Download Rank: 213,814

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.422 seconds