The Exhaustion Doctrine and Genetic Use Restriction Technologies: A Look at Bowman v. Monsanto

17(5-6) Journal of World Intellectual Property 129-141

Posted: 16 Oct 2017

See all articles by Jessica C. Lai

Jessica C. Lai

Victoria University of Wellington

Date Written: 2014

Abstract

The relationship between intellectual property rights and technologies used to protect such rights has been gaining more and more attention in recent years. This has mostly been in the field of copyright and digital rights management technologies (DRMs). However, challenges raised by certain biotechnologies and their inherent reproductive nature have caused patent and plant variety right (PVR) owners to similarly create genetic use restriction technologies (GURTs) to protect their rights. Arguments analogous to those raised in the copyright arena have been made that GURTs exceed the rights of patentees and PVR owners, and prevent permitted uses from being undertaken. This article discusses these arguments in light of recent case law on the exhaustion doctrine, exactly what it is that GURTs do and the permitted uses in patent and PVR law. It concludes that the US Supreme Court decision Monsanto v. Bowman, along with the nature of GURTs, the patent specification and the limited exceptions to patent infringement, mean that GURTs actually fit well with patent law and policy. However, the same cannot be said about GURTs used to protect PVRs, due to the different standards for registration and more extensive exceptions to infringement.

Keywords: patent law; plant variety rights; exhaustion; biotechnology; GURTs

JEL Classification: K11, K33, K39

Suggested Citation

Lai, Jessica C., The Exhaustion Doctrine and Genetic Use Restriction Technologies: A Look at Bowman v. Monsanto (2014). 17(5-6) Journal of World Intellectual Property 129-141, Available at SSRN: https://ssrn.com/abstract=3053063

Jessica C. Lai (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington
New Zealand

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