Self-Replicating Technologies

Guest Post by Jeremy Sheff. In view of the pending Monsanto case, I asked Professor Sheff to provide some of his thoughts on the patenting of self-replicating technologies –  DC.  This essay is cross-posted on PrawfsBlawg.

Self-replicating technologies, once the subject of theory and fantasy, are now upon us. The original self-replicating machine—the living organism—has already been harnessed by biotechnology engineers and, more to the point, their lawyers.  The next wave of self-replicating technologies, be they nanomedical robots or organic computers, are not far behind. Rather than triggering a “grey goo” apocalypse, these technologies are, at present, raising far more prosaic issues of intellectual property and antitrust law.

Those issues have now apparently caught the attention of the Supreme Court.  A few weeks ago, the Court called for the views of the solicitor general on the certiorari petition in the case of Bowman v. Monsanto.  This is the latest in a series of cases in which the Federal Circuit has addressed the application of the doctrine of patent exhaustion to the genetic engineering technology embodied in Monsanto's "Roundup-Ready" herbicide-resistant seeds.  Seeds are the prototypical self-replicating technology, and a number of similar herbicide-resistant crops are in the pipeline of the largest agribusiness concerns.  In each of the Roundup-Ready cases, a farmer has argued that Monsanto's patent rights do not extend to the second generation of soybeans grown from a patented first-generation seed.  In each case, the Federal Circuit found for Monsanto and against the farmers.

Patent exhaustion (or "first sale") doctrine serves as a limit on patent rights, and provides that once a patentee has made an authorized sale of an embodiment of its patented invention, its patent rights with respect to that embodiment are exhausted, and the purchaser is free to use or re-sell the embodiment as it sees fit.  Like analogous doctrines in copyright and trademark, it is motivated by competition concerns.  Its aim is to enable the creation of downstream or secondary markets in patented articles, and to prevent patentees from using their intellectual property rights to gain market power in markets other than the market for the patented technology.  When the Supreme Court last spoke on the issue, it rebuked the Federal Circuit for giving these pro-competitive policies insufficient weight.  It seems to be considering an encore in the Roundup-Ready cases.  For reasons I'll explain after the jump, I think that would be a mistake.

The Federal Circuit's analysis of patent exhaustion in the Roundup-Ready cases is admittedly not a model of the judicial craft.  Framing the issue as a formal question whether a second-generation soybean is a different "article" than the first generation seed from which it grew, the court's main justification for its result was the bare assertion that any alternative result would "eviscerate" Monsanto's patent.  But this is a question-begging explanation, and there are other, better reasons why a patentee's sale of a single embodiment of its self-replicating technology ought not to exhaust patent rights with respect to the second, third, or nth generation of the technology that is propagated from that first embodiment.  Moreover, these reasons are consistent not only with the reasons for granting patent rights in the first place, but with the pro-competitive principles that justify limiting those rights through exhaustion doctrine.

To get at these reasons, I propose a thought exercise.  Let's imagine that the Roundup-Ready cases came out the other way–that purchasers of Roundup-Ready seed from Monsanto were free, as a matter of patent law, to use all subsequent generations of soybeans grown from those first purchased seeds however they saw fit.  What would we expect the Monsantos of the world to do?  How do we believe their behavior might be influenced by this new legal framework?

One possible answer to this question is: not at all.  It may be that the additional revenues to be derived from selling additional embodiments of a self-replicating technology to the same customer are trivial (perhaps due to the structure of demand), and that the prospect of any one customer re-selling a subsequent generation of the technology to another potential customer of the patentee is remote.  Nanomedicine, particularly personalized nanomedicine, may one day prove that this is a possible result.  But in the agriculture context, it strikes me as unlikely.  

Where the technology at issue is an input for the production of a commodity, and the demand for that technology is broad and essentially undifferentiated, I would expect that the possibility of re-sale of nth generation seeds by the patentee's customers would significantly eat into the patentee's revenue stream, potentially making it impossible for the patentee to recoup the investment in research and development required to develop the technology in the first place.  This is the classic free-rider problem that patent law is supposed to prevent: we preserve the incentive to engage in costly research and development by giving the inventor a limited-time monopoly.  Other scholars have noted that this free-rider rationale is particularly salient for inherently self-disclosing inventions (inventions that are easy to copy once they have been introduced to the public).  I would add that self-replication exacerbates the problem of self-disclosure: the patentee selling an embodiment of its invention would not only be teaching competitors how to practice the invention, it would in essence be building their factories as well.

So there are sound justifications grounded in the innovation policies underlying patent law for the Federal Circuit's rulings in the Roundup-Ready cases.  But of course, patent exhaustion doctrine is concerned not only with innovation policy, but also with competition policy.  This brings me back to my earlier question: how would we expect the Monsantos of the world to react to the free-rider problem if patent law did not protect them against competition from nth generation copies of their own first-generation products?  I can imagine two possible strategies a technologist might pursue to circumvent the free-rider problem: contract and secrecy.  And I think both of these alternatives are inferior to the patent solution crafted by the Federal Circuit on competition grounds.

Take the contract approach, which has been explicitly advocated by Yee Wah Chin, one of the attorneys representing the interests of Monsanto's farmer customers.  To avoid the problem of free-riders Monsanto might, for example, restrict sales of its seeds to customers who sign a license agreement in which the customers undertake to monitor the uses of nth generation embodiments.  So, a farmer might have to agree to sell his soybean crop only to buyers who have their own license agreement with Monsanto, or to Monsanto itself.  Or Monsanto could include field-of-use restrictions in its licenses, as Ms. Chin proposes: "Monsanto could have licensed seedmakers to sell seed embodying Monsanto technology on condition that the second-generation seed be either consumed or sold to buyers who agree to either consume the seed or isolate that seed from other seed and sell the seed only for consumption."  

This does not strike me as a pro-competitive result, for a few reasons.  First, it incentivizes Monsanto to extend its influence into downstream markets–such as the market for commodity soybeans and their derivative products–in ways that it would have little incentive for under the Federal Circuit's approach.  This downstream market creep is precisely the type of expansion of patent rights that exhaustion doctrine is supposed to prevent, out of fear that the patentee's interests are not likely to be consistent with the efficient functioning of those downstream markets.  Second, and perhaps more importantly, forcing Monsanto to look to contract rights to protect its investment in research and development shifts the costs of monitoring and enforcing the Roundup-Ready patents from Monsanto itself onto its customers, who are likely to face higher monitoring costs.  

We must remember, Monsanto's customers are largely farmers, who lack Monsanto's economies of scale, its greater expertise with its own technology, and its understanding of the functioning of the markets for that technology.  Moreover, shifting enforcement responsibility from the patentee to its customers is likely to create agency costs where they would not otherwise exist.  A farmer who is paying Monsanto a premium for Roundup-Ready seeds probably has far weaker incentives to vigorously monitor for violation of Monsanto's license terms than does Monsanto itself, which is reaping the premium.  Finally, in the event that a customer breaches these monitoring obligations, either maliciously or negligently, Monsanto's technology could fall into the hands of a competitor who is not in privity of contract with Monsanto and thus (absent any unfair competition type of claim) would be free to use the nth generation seed (in which Monsanto's patent rights are exhausted) to compete with Monsanto.  An individual farmer is likely to be judgment-proof in the face of the claims Monsanto might make should such a competitive threat emerge outside the reach of its licensing provisions, which once again leads us to the original problem: how would we expect Monsanto to respond to this risk of free-riding?

This brings me to the last alternative to the Federal Circuit's solution in the Roundup-Ready cases: secrecy.  Monsanto might seek to prevent free-riding by refusing to release its technology to public view, and relying on trade secret protection to protect against free-riding.  But in order to preserve its secret (a prerequisite of trade secret protection),  Monsanto would have to ensure that nothing it released into the market disclosed its genetic technology.  As I noted above, self-replication can be seen as a heightened form of self-disclosure, and so this type of secrecy would be fairly hard to maintain.  Indeed, I think the only plausible way of doing so would be to pursue a course of comprehensive vertical integration.  Monsanto would not only have to be in the business of propagating seeds, but also in the business of cultivating and harvesting soybeans, and processing them into useful products (oil, animal feed, industrial adhesives, tofu, you name it) that do not reveal the genetic material at the core of Monsanto's invention.  Even if this were technically possible (a big if), the effect on all sorts of markets, both for inputs and outputs of the soybean market, is likely to be catastrophically anti-competitive.  Where the alternative is such drastic shocks to competition in the market for, e.g.,  miso paste, soy-fed livestock, and arable land, the Federal Circuit's decisions in the Roundup-Ready cases start to look surprisingly pro-competitive.

The big question in my mind, then, is not whether the Federal Circuit's reached the right result in the Roundup-Ready cases.  Given the factual setting of those cases, I think the answer to that question is a relatively uncontroversial yes.  The real question, to me, is whether the same holds true for self-replicating technologies other than seeds for agricultural commodities.  I already noted above one type of self-replicating technology–personalized nanomedicine–that may not present the same incentives for patentees, their customers, and their competitors, as do herbicide-resistant soybeans.  Given how little we can presume to know about the future development of other self-replicating technologies, it is likely unwise to try to set a rule today to govern the rights of downstream users for all such technologies that may arise tomorrow.  And for this reason alone, it may be worth getting some discussion of the issue from the Supreme Court, which seems particularly sensitive (almost to a fault) to the hazards of establishing brittle legal rules to govern the unknown future of technology.  If the analysis that emerges is more substantive and functionally-minded than the under-argued, formalist analysis of the Federal Circuit (admittedly, another big if), I would be happy to see the Court take the case, if only to put the type of issues I've discussed in this post on the table.

30 thoughts on “Self-Replicating Technologies

  1. 30

    The reason why you have not heard of that Falnn, is likely because tha tis not what is claimed.

  2. 29

    JING, you are asking the right questions. Farmers who do not need or want to use/pay for Monsanto’s roundup ready seed are FORCED into licenses with Monsanto when the latter contaminate the farmers’ fields. Farmers who use Monsanto’s GM seeds are not required to plant buffers to try to prevent cross-pollination.

    GM seeds are a unique problem requiring targeted legal remedies; as one documentary put it (The Future of Food), a carburator does not spontaneously jump from one car to another. The patent should be exhausted after the first sale.

    Plus, one point I have not yet heard discussed anywhere, is that natural mutations could be occurring in the subsequent generations – which would null the patent. Should that not be Monsanto’s burden to prove that the progeny contain exactly the same genetic structure as the patented item?

  3. 28

    Jing, that is not a hypothetical you have there. It is fact. The patented plant spreads naturally.

    Moreover, by deliberately contaminating commodity seed, Monsanto has collaborated in the spread of the patented plant to all farms and without restriction.

    While Monsanto may still be able to sell its patented seed as an essentially pure, they should not be able to sue the average farmer for infringement for simply doing what he or she have always done: plant one’s fields with commodity seed. The present of the patented seed in such commodity seed is inevitable.

  4. 27

    IANAE, "man produces the plant from the seed and the seed from the plant?"  Only in the same metaphysical sense that the big bang created you and me.  Both result from laws of nature that are products of nature.
    The first plant or seed genetically modified may have been created by man.  But thereafter, all subsequent plants and all subsequent seed are products of nature.


  5. 26

    IANAE, the problem with patenting wild things is that once exposed to the environment, they spread naturally. 
    Moreover, planting a seed is not making a plant.  It is using a seed for the purpose for which it was intended.
    The plant is a product of nature as are the seeds it produces.  Products of nature cannot be patented under Supreme Court precedent.

  6. 25

    IANAE, the facts seem to show that Monsanto's RR soybeans have spread everywhere in Indiana so that every soybean field is majority RR.  No farmer can conduct farming without infringing even if he did not want to.  This cannot be right!!!!
    Moreover, it appears that having a RR soybean in one's crop makes the crop unsaleable outside the US.  So, the value of the crop is diminished by Monsanto's contamination.  It is Monsanto that is causing harm, not the farmers by planting commodity seed deliberately contaminated by Monsanto.
    I think it is time for the US government to ban GMOs unless they cannot reproduce naturally.  B


  7. 24

    Even if the original article he bought was duly licensed and the patentee’s rights therein fully exhausted.

    You have assumed the point to be proven.

  8. 23

    Property rights are a bundle of exclusive rights. That is what patents are as well.

    Yes, patents are property. Monsanto owns its patent. Let me know when Monsanto releases its patent into the wild.

    What does that have to do with whether someone else’s seed is an infringement?

    A plant produces seed, not man. Absent a contract with Monsanto, Monsanto should have no rights in the seed as it is a product of nature.

    Perhaps you haven’t heard of agriculture. Man creates the unnatural conditions that cause plants to produce a staggering quantity of seed. If you built a factory that produced industrial quantities of a chemical that happened to also exist in nature, would you say “nature produces this chemical, not man”? Of course not. Man produces it too, now.

    More to the point, the seed is clearly not a product of nature, because it never existed before Monsanto invented it. It can be copied by a process that uses the laws of nature, but the same can be said for the fryer in the Global-Tech case. Or for anything, really.

    The seed is the property of the farmer. If he uses it in a way that infringes a patent, whether by making more seeds or by gluing a bunch of them together to make a patented chair, it’s the farmer’s problem.

  9. 22

    IANAE, so you ADMIT that the violation (retaining seed) is a breach of contract and that the Federal Circuit decision was wrong to the extent that it did not require a breach of contract by anyone before finding infringement by the farmer.

    It’s not up to me to “admit” that a contract has been breached.

    I also don’t see how it’s relevant to the farmer whether someone else’s contract has been breached. If the farmer takes a patented article and deliberately makes a bunch of copies to sell, that’s patent infringement. Even if the original article he bought was duly licensed and the patentee’s rights therein fully exhausted.

    I recognize that there are problems when the farmer can’t or won’t distinguish patented seed from unpatented seed after they unavoidably mix. That doesn’t make the patents fundamentally defective in any way. It simply forces us to think a bit harder about the nature of infringement. But if the farmer is drowning his crop in Roundup, and all his soy/canola/corn/wheat/whatever is surviving the experience because of the patented gene, by all means have him pay Monsanto for the privilege.

    Patenting sexually reproduced plants is a joke.

    Is this how you felt about the Harvard mouse? Is it how you feel about other methods of developing new crops that have existed since time immemorial? And in any event, if the infringing product is a public nuisance (in your personal subjective opinion), what does that have to do with the validity of the patent?

  10. 21

    Read Judge Posner’s district court decision (sitting by designation in the ND of Illinois) in the SKB v Apotex case from around 2004, link to There the issue was whether the presence of a minute and unwanted amount of a patented crystalline form of a salt in the defendant’s active pharmaceutical ingredient constituted infringement. Judge Posner noted, ableit in dictum, that if that unwanted form was present as a result of seeding from SKB’s own crystals, then SKB would be equitably estopped from asserting infringement. On appeal several of the CAFC judges seemed to be taken with this view, although Judge Posner didn’t rely on it and neither did the CAFC. Nevertheless, such a view might be applicable to situation you describe, at least with respect to neighboring farms.

  11. 20

    IANAE, so you ADMIT that the violation (retaining seed) is a breach of contract and that the Federal Circuit decision was wrong to the extent that it did not require a breach of contract by anyone before finding infringement by the farmer.  The Federal Circuit held that planting seed was making, an act of infringement.  This act is done by anyone with the seed having the patented genes, whether they got the seed from Monsanto or whether the seed spread from the wild. 
    Patenting sexually reproduced plants is a joke.  Not only should such patents be declared invalid under the law, the Government should prevent GMOs from contaminating the environment as they spread naturally to farmers who want nothing to do with them.  They are a public nuisance.


  12. 19

    Property rights are a bundle of exclusive rights.  That is what patents are as well. 
    If you patent the improved June bug and release it into the wild, what have you done with your patent rights?  They are gone with the wind just as are your property rights in the bug.  Both depend upon control of the bug.
    Plants that sexually reproduce will spread if they are exposed to the wild.  A plant produces seed, not man.  Absent a contract with Monsanto, Monsanto should have no rights in the seed as it is a product of nature.
    The natural spread of these plants is creating an national controversy that must be addressed.  See, link to; and


  13. 18

    Monsanto’s seeds are being sold with license to plant once and sell the next generation of seed to a place where it typically gets eaten.

    This is not true.

  14. 17

    Lets say that no one can use a patented self-replicating seed without paying the patentee (or getting a license, or what have you). Lets assume that the seed is corn.
    What happens when that seed jumps into a corn field of farmers that did not buy them, by no fault of that farmer, as it happens in nature? Does Monsanto now owns that crop? Is the farmer obligated to get a license from Monsanto to harvest and sell that corn? If the farmer does not get a license, does the farmer have to spend money replanting his crop?
    Even more. Assume the seed spreads like wildfire itself into fields it’s not supposed to go. Or that, unbeknown to a farmer, a seed he/she buys is a Monsanto seed (somehow I doubt the seed is replicated with a patent # marking). Given that most corn in the US comes from contiguous farms in the mid-west, could Monsanto then gain power over most production of corn in America without even having to pay the cost to create the seed?
    Sounds very anti-competitive to me.

  15. 16

    If you sell a genetically engineered bull to a farmer, is it an infringement when the bull does its thing and produces offspring?

    Of course not. Who would ever buy or sell a stud bull without explicit license to do that?

    Monsanto’s seeds are being sold with license to plant once and sell the next generation of seed to a place where it typically gets eaten.

  16. 15

    The problem is that one cannot assert property rights in wild things.

    You keep saying that. What property right are you talking about?

  17. 14

    What? If you sell a genetically engineered bull to a farmer, is it an infringement when the bull does its thing and produces offspring? Can the patentee impose a charge on the milk of the cows from the bull. Can he charge for male offspring producing new calves. Where does it end?

  18. 13

    Gentically engineered animals have been sold for years. When these animals produce offspring (I assume that all genetically engineered animals are not sterile) how are they treated? What can we learn by looking at these animals? Or what about genetically engineered bacteria, etc.?

  19. 11

    I appreciate Prof. Sheff citing my article regarding Monsanto’s assertion of patent rights in second generation seed generated from seeds purchased by farmers. In response to Prof. Sheff’s 2 points on my proposal of a contract approach, which the Supreme Court arguably reserved in footnote 7 in Quanta, I offer the following quick thoughts.

    As to the first point, Monsanto is already extending its influence into downstream markets, by exerting its patent rights to all succeeding generations of seeds. Applying the first sale doctrine to terminate its patent rights, and permitting it the lesser remedies of contract rights, should in fact lessen Monsanto’s ability to influence downstream markets. As to the second, if Monsanto is permitted only contract remedies downstream, then there are no patent monitoring and enforcing costs downstream that would be shifted to farmers because there are no patent rights to be monitored and enforced downstream. Moreover, perhaps as 2 New Yorkers we fail to fully appreciate the sophistication of farmers in their area of expertise, farming in all its modern complexity. Bowman was pro se in the district court and offered some very sophisticated arguments. As to remedies, the most significant in these contexts may be injunctive, which depends little on the defendant’s resources or not being judgment proof. As to lack of privity with Monsanto, one might consider whether one who acquired seed that was sold in breach of a covenant with Monsanto has acquired clear title. Finally, as to the potentially anti-competitive impact of a contract, a contract that results in an unreasonable restraint on competition would be subject to the antitrust laws.

    I also share some quick thoughts regarding the first sale doctrine and Bowman’s certiorari petition.

    It may be that the first sale doctrine was motivated at least in part by competition concerns, given the early assumption that intellectual property rights created monopolies. It seems just as likely that the doctrine is based on the implicit bargain, perhaps more explicit in the case of patents, that exclusivity under the law is granted on condition that it is limited in time and scope.

    Self-replicating technologies may indeed raise the question of free riders. However, seeds may be distinguishable from other self-replicating technologies, in that one of its major purposes, if not only purpose, is to replicate. Therefore, when one buys seed, the expectation is that one will plant it so that it will replicate. It is unclear that there is free riding in that context when one then uses the second generation seed for what seed is primarily for, planting. Moreover, as in any other case where a patented item may be resold, either intact or incorporated into another item, the initial selling price of the item can be calibrated to account for the likely subsequent uses or re-sales. This is essentially the Univis and Quanta situations.

    The Supreme Court denied certiorari the other two times that it was asked to review the first sale doctrine in the context of Monsanto’s seeds, after also getting the Solicitor General’s views in one case. Those 2 cases may have been, as the SG concluded in McFarling, correctly decided on their facts. However, Bowman’s facts are substantially different from those in McFarling and Scruggs, and highlight some consequences of Monsanto’s position taken to a perhaps logical conclusion. Bowman presents a much stronger case than the 2 earlier for granting cert., and exploring further the implications of Quanta and perhaps Mallinckrodt.

  20. 10

    A word about credibility to the good (guest) professor.

    Next tim eyou choose to writeon a topic, do a little research and get in touch with reality.

    Reading through the portion on “contracts” was downright painful.

  21. 9

    I really like the Federal Circuit opinion. Patent the improved plant. Throw seeds into farmers fields far and wide where the seeds replicate, grow and spread to all fields and all farmers. Then tell the farmers they are infringing because subsequent generation of the plant growing in their field are infringement.

    Go one step further, patent the improved fish. Throw one in the sea, and then sue all fishermen who fish (and sell) that variety for infringement.

    Next we turn to mice. Release your patented mouse into the wild and then claim all future offspring as your exclusive property. If anyone uses one in a lab, they infringe.

    And the beat goes on.

    We should note that plants spread their genes everywhere naturally. Pollination knows no boundaries, AFAIK. We can and should expect the patented plant variety to spread naturally once it is exposed to nature. If it can spread, it will, making the public domain a infringement.

    I note that is possible to prevent a second generation from growing if a plant is engineered to produce steril seeds. May I respectufully suggest that we require this of any such patents?

    The Supreme Court must and should visit the whole issue of patentablility of self-replicating plants and animals.

  22. 8

    If the court is correct then the farmer should be able to sue for trespass. If chattel exists on someone’s land and is not removed then it is a trespass. Clearly Monsanto should be held liable for trespass for any unwanted seeds present on the land. The damamges should be that which would be received by Monsanto through a reasonable patent royalt.

  23. 7

    Monsanto made two arguments against patent exhaustion on appeal. First, it argued that its rights in the commodity seed were not exhausted because the license agreement prohibited supplying any seeds incorporating the Monsanto technology to anyone for the purpose of planting.

    This is totally against public policy, because Monsanto is effectively saying if you plant our seeds we own your land. What is the seed just dropped on the ground and commenced growing. The seed has not be supplied by the farmer at this juncture but Monsant. This argument doesn’t hold water.

    Second, it argued that even if its rights in those commodity seeds had been exhausted, Bowman was still guilty of infringement for planting the commodity seed and creating a new generation of seed incorporating its technology. The Federal Circuit agreed with at least this second line of reasoning. This argument doesn’t hold water either for the reasons stated above.

    The net effect is that the cost of producing this new technology is being socialized by the increase cost of food born by the consumer through having to pay for the patent license fee and in return for what. Destruction of nearly 200 years of sound patent law.

  24. 6

    The finding for the court in Bowman is completely incorrect. Even if Monsanto’s patent rights in the commodity seeds are exhausted, such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto’s Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article.” It is not the farmer that has created the seeds . . . it is Monsanto for it is its seed that grew the plant. This finding by the court is clearly erronoeous. How could it be that the farmer created the seed. The seed that is created is generated from the little biological factory sold to the farmer by Monsanto.

  25. 5

    This seems to be a very straight forward analysis, barring the public policy implication of whether we desire to advance self-replicating technologies. It is manifest that naturally occuring processes are not the subject for patent protection. If it occurs naturally it isn’t new. No novelty. Now we must look to that Monsanto technology. If I remember correctly, the first generation seeds include a moleular attachment to the seed that allows it to live in what would otherwise be a toxic environment-Round-up permeated soil. So assume that a new seed is generated from the plant that is grown from the first generation seed. Suppose that this seed includes the molecule that allows the the new seed to live in a toxic environment. Well it is manifest that this molecule was not made by the farmer. It is clearly made by Monsanto as it is the product of a purchased patented product and one knew it would grow into a plant and creat new seeds that are covered by a patent. I assume that the farmer did not sale or offer for sale the seeds, as he is using them to grow new plants. That brings us to use as supporting a claim of infringement. Well if Round-up is not present on the land that the farmer is farming how could it be said that the claimed invention is being used. No Round-up no use of the attached molecule, i.e., the seed is being used for its naturally occurring processes-to grow a plant. Now let us suppose that the farmer decides to use round up in connection with the next generation seeds. It seems to be that we have an anti-trust issue here by unlawfully extending the life of the patent that expired on the original formulation of Round-up. You see if the only manner in which to acquire use of the patented invention is through use of formerly patented product it would stand to reason that one could argue that all Monsanto is attempting to do is extend the life of the monopoly for the formerly patented product Round-up. I am no anti-trust expert, but the gravity of this situation becomes manifest if the self-replciation of the molecule attachment results from nothing more than naturally occuring processes of the plant. If Monsanto has a claim on the self-replicating process the analysis would be different. Any comments would be appreciated, becuase I would appreciate garnering a further understanding of anti-trust law as it relates to patents.

  26. 4

    “I would add that self-replication exacerbates the problem of self-disclosure: the patentee selling an embodiment of its invention would not only be teaching competitors how to practice the invention, it would in essence be building their factories as well.”

    As if this “problem” is going to prevent the next monsanto or monsanto themselves from developing the next self-replicating tech. Absurd.

  27. 2

    after its complete bungling of Mayo, I doubt the Supreme Court will get this one right.

    This case has nothing to do with ineligible subject matter and the Supreme Court certainly got it right in Mayo.

    I agree with Prof. Sheff that it’s a useful exercise to consider the effects, positive and negative, of alternate outcomes.

  28. 1

    Nice analysis, but after its complete bungling of Mayo, I doubt the Supreme Court will get this one right. What makes you so optimistic?

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