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

47 Pages Posted: 12 Dec 2012  

Shubha Ghosh

Syracuse University College of Law

Peter Carstensen

University of Wisconsin Law School

Randy Stutz

American Antitrust Institute (AAI)

Date Written: December 12, 2012

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.

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

JEL Classification: K2

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: https://ssrn.com/abstract=2188618

Shubha Ghosh (Contact Author)

Syracuse University College of Law ( email )

900 S. Crouse Avenue
Syracuse, NY 13244-2130
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 )

1730 Rhode Island Avenue, NW
Suite 1100
Washington, DC 20008-1022
United States

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