Patent Controls on GM Crop Farming
Santa Clara Journal of International Law, Vol. 4, p. 1, 2006
20 Pages Posted: 19 Feb 2009 Last revised: 21 May 2014
Patents on genetically modified (GM) crop technology arm their owners with powerful control over farmers' ability to grow, harvest, distribute, and profit from GM crops. No clearer example exists than the April 2004 decision of the U.S. Court of Appeals for the Federal Circuit in Monsanto Co. v. McFarling (McFarling II), in which the court upheld Monsanto's patent licensing practice of forbidding farmers to save seed from GM crops for replanting. McFarling II thus confirms the illegality of a custom engaged in by farmers for centuries. The Federal Circuit's conclusion that Monsanto's restriction on planting saved seed does not violate the antitrust laws nor amount to patent misuse deserves further scrutiny, as demonstrated by the Supreme Court's invitation to the Acting Solicitor General to file an amicus brief in McFarling II. This paper details the facts of McFarling II and critiques the Federal Circuit's analysis of the unique patent and antitrust law issues raised thereby.
Keywords: patents, patent controls, patent licensing, genetic modification, crop technology, U.S. Court of Appeals for the Federal Circuit in Monsanto Co. v. McFarling (McFarling II), patent misuse, antitrust law
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