Bowman’s Beanstalk: Patent Exhaustion in Self-Replicating Technologies

Download

Zachary Loney · 15 Vand. J. Ent. & Tech. L. 949

Abstract

The breakneck speed of innovation has once again brought uncertainty to the realm of patent law in the form of self-replicating technologies. Traditionally, the doctrine of patent exhaustion has provided a balance between the monopolistic powers of the patent holder and the consumer’s freedom to utilize a purchased product without future interference. The rights holder receives compensation from the initial sale and retains the right to make and sell additional goods, while the consumer may use or resell their particular article without concern for additional fees or payments. Self-replicating technology blurs this line because a consumer’s use inherently includes the making of additional identical products.

This Note explores this issue against the backdrop of Monsanto v. Bowman, a genetically modified seed case that has reached the US Supreme Court. This Note argues that the Federal Circuit reached the correct conclusion; however, its reasoning relied overmuch on previous precedent and failed to adequately address the issues specific to this technology or those raised by recent Supreme Court decisions. This Note next explores the similarities between biotechnology and software systems—particularly the phenomenon of incidental copies—and the latter’s protection under copyright in search of applying a similar solution in patent law. Unable to find such a solution, this Note concludes that requiring licenses for both the “right to use” and the “right to make” for self-replicating technologies ensures the best possible balance between the patentee and consumer and supports the underlying policies of promoting innovation and competition.