My Amicus Brief in Bowman v. Monsanto

Over the last several days, I have posted a number of briefs that have been filed by various parties in Bowman v. Monsanto. Today I filed my own Amicus brief in the case, in support of affirmance, available here.

Here is my "Summary of Argument":

Intellectual property plays a critical role in the development of self-replicating technologies such as Monsanto's genetically modified soybeans. Without some mechanism to constrain the use and dissemination of replica products, free riders would quickly flood the market with copies and impair the innovator’s ability to secure an adequate return on investment. Because of the ease with which genetically modified soybeans can be replicated by any user who comes into possession of even a single seed, whatever the source, enforceable patent protection is essential to maintain an adequate incentive for innovation.

The potential impact of this case goes well beyond Monsanto and soybeans. A decision that results in the exhaustion of patent rights in copies of self-replicating products could dramatically undermine investment in a host of promising green technologies for sustainably feeding, fueling and healing the world. It might also discourage commercialization of synthetic biology, the much heralded next iteration of the biotechnology revolution.  Such a dramatic and far-reaching shift in the patent landscape is certainly not warranted, particularly on the facts of this case.

It is important to recognize that it is petitioner, not the Federal Circuit, who is seeking to create an exception to the doctrine of patent exhaustion.  In essence, petitioner is arguing for an expansion of the doctrine to encompass not only patented products that have been the subject of an authorized sale, but also copies of the product - copies that were never the subject of an authorized sale. Petitioner alleges that this drastic measure is warranted because the use of Monsanto’s product inherently and unavoidably results in the production of copies, citing numerous hypothetical policy concerns. But these potential concerns are not presented in this case, involving a farmer who intentionally used and benefitted from Monsanto’s patented technology without paying for it.  To the extent any of these concerns actually become an issue in the real world, they can and should be addressed in a manner that does not effectively deprive innovators of the ability to enforce their patents with respect to self-replicating technologies.

It is informative to consider how analogous concerns have been addressed with respect to another important self-replicating technology, computer software. Even though the use of many software programs inherently and unavoidably results in the production of a copy on the user's computer, which would technically constitute copyright infringement, it makes little sense for software companies to sue their customers for this sort of infringement. It is simply not a problem.  If the potential for an infringement lawsuit became a concern, the software company could address it by explicitly authorizing purchasers to make a copy of the software, at least to the extent that such copying is an essential step in using the software. In any event, to resolve any lingering concern, Congress took the step of amending the copyright statute to explicitly exempt authorized users of computer software from liability for producing a copy that is used solely as a necessary element of running the software.

Significantly, it has not been deemed necessary to expand copyright's first sale doctrine (copyright’s analog to the doctrine of patent exhaustion) in a manner that exhausts patent rights in copies of copyrighted software that are inherently created when the software is used. To do so would effectively strip software developers of meaningful copyright protection once a first round of copies has been sold and replicated. In the same way, and for much the same reasons, it is unnecessary to expand the doctrine of patent exhaustion with respect to self-replicating patented technologies like Monsanto's seeds. To the contrary, to do so would effectively deny enforceable patent protection to many self-replicating technologies.

Congress is in the position to weigh competing interests, and if necessary enact legislation to address any unique policy concerns presented by the interplay of intellectual property rights and self-replicating technologies.  It has done so with respect to computer software, and in a manner that does not deprive software producers of the ability to enforce their copyrights against free riders. It can do so with respect to patented self-replicating technologies as well. In fact, a bill is currently pending in Congress that would effectively create a compulsory license in patented seeds. Leaving aside the question of whether this would be the best approach, it illustrates that Congress is fully capable of addressing concerns expressed by petitioner and its amici without entirely stripping innovators like Monsanto of their patent rights.