Jeremy Sheff’s latest post on PrawfsBlawg addresses a familiar problem–how should current legal doctrines adapt to technological innovation. Here are the first two paragraphs, which set out the issue:
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.
You can find Jeremy’s analysis of the problem here.