Professor Jeremy Sheff has published Self-Replicating Technologies, 16 Stan. Tech. L. Rev. 229 (2013). Here’s the abstract:
Self-replicating technologies pose a challenge to the legal regimes we ordinarily rely on to promote a balance between innovation and competition. This Article examines recent efforts by the federal courts to deal with the leading edge of this policy challenge in cases involving the quintessential self-replicating technology: the seed. In a recent series of cases involving the invocation of the patent exhaustion defense by purchasers of Monsanto’s “Roundup-Ready” genetically engineered herbicide-resistant crop technologies, farmers have 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. The Supreme Court is about to take up the issue for the first time.
In this Article, I argue that the Federal Circuit reached the right result in the Roundup-Ready cases, but that it failed to articulate a satisfactory justification for its decisions. That justification, I claim, should be that the patent-based policy set by the Federal Circuit is preferable to alternative legal regimes—such as trade secret and contract law—because it avoids disincentives to competition, innovation, and dissemination of new self-replicating technologies while reducing transaction costs inherent in their commercialization. Importantly, however, not all self-replicating technologies are identical, and a categorical rule exempting them from patent exhaustion doctrine is unwarranted. I propose instead that application of the exhaustion doctrine should depend on the patentee’s ability to charge supracompetitive prices in its primary market where consumers are able to substitute secondary-market embodiments.
Meanwhile, Professor Edward Cavanagh’s article, The Impact of Twombly on Antitrust Actions Brought in the State Courts, has appeared in the Antitrust Source, an on-line, peer-reviewed journal published by the ABA Antitrust Section. Here is its opening:
The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly set off shockwaves that reverberated throughout the federal civil justice system. In a calculated effort to raise the bar for pleadings in federal court, the Court (1) redefined notice pleading; (2) consigned to the scrap heap the fifty-year old “no set of facts” test embodied in Conley v. Gibson in favor of a “plausibility” standard; and (3) assigned trial judges the task of actively scrutinizing complaints to make sure that deficient claims do not proceed to expensive discovery and perhaps an equally expensive, and ultimately unsuccessful, trial.
As federal courts have labored to implement the new pleading standards, state courts have taken notice of Twombly and its progeny as well in addressing state law pleading issues. This article (1) examines the treatment of Twombly by the state courts, particularly in antitrust cases; (2) analyzes whether that treatment inures to the benefit or detriment of state court litigants; and (3) considers pleading along with other factors in analyzing the practical question of which forum—state or federal—might be the most advantageous venue for a given civil action.