The economies of the world depend upon innovation to create the new technologies and industries that drive consumption, growth, and job creation. In turn, patents help ensure innovators have an incentive to innovate. Unfortunately, the patent process and the enforcement of patent protections have only grown more complicated with globalization and the advent of the cyber age. For the first time since 1952, Congress made significant revisions to US patent laws with the Patent Reform Act of 2011, but the law did not address many of the critical issues those looking to protect their innovations face. One critical area of concern, which has gone unaddressed, revolves around so-called self-replicating technologies.
On Tuesday, February 19, 2013, the Supreme Court heard arguments for a case involving the infringement of a Monsanto patent by a seventy-five year old farmer named Vernon H. Bowman. Monsanto alleges Mr. Bowman violated its patent for Roundup Ready soybean seeds when he planted seed from a grain elevator then saved a portion of the crop for subsequent plantings. The harvested seeds contained the genes protected by Monsanto’s patent. In this particular case, the farmer was likely in the wrong as he did sign an agreement with Monsanto that prohibited him from saving seeds with the Roundup Ready genes when he originally decided to purchase seeds from Monsanto.
Furthermore, the manner in which the Monsanto patent is structured affords the agricultural giant a broad range of patent protections. In fact, one interpretation of Monsanto’s patent is that all seeds found with the patented genes are the property of Monsanto. In tandem, Monsanto’s extremely aggressive pursuit of potential violators creates a situation where this one company is on track to hold a permanent monopoly over the soybean industry. Consequently, it is extremely important for government to find a means of protecting self-replicating technologies without allowing for the automatic creation of monopolies.
How the Supreme Court rules in the Bowman case will determine how patents throughout a variety of industries can be interpreted and enforced. Looking at the interests surrounding the case can reveal what might be done to find a suitable remedy for the conundrum self-replicating technologies create.
Monsanto has an interest in patenting gene technology, so it can recover the capital it invested in the development of the technology and derive a profit as an incentive for future investment. Clearly, this interest is not unique to the agricultural industry.
That said, this particular interest of Monsanto is somewhat diminished as Monsanto has an interest in ensuring farmers use its Roundup herbicide. Without Roundup Ready seeds, farmers cannot use Roundup on their crops. In many respects, Monsanto is double dipping, so direct profits for the Roundup Ready genes are not as necessary as they may be in other examples. After all, McDonalds earns profits on its hamburgers, fries, and drinks, but not on its drive thru’s, dining rooms, and bathrooms.
Meanwhile, the United States government has an interest in protecting the fruits of researchers in order to foster innovation as well as an interest in protecting customers by preventing overly hawkish enforcement of patent protections and by ensuring customers have alternative products to consume, i.e. prevent monopolies.
Complicating the situation is globalization as international patent enforcement is problematic. Truthfully, businesses and other patent holders need clearer options, so they can better deal with violations of their patents. This can only be done, however, if foreign governments respect American patents and patent laws. As such, the US government has an added interest in ensuring patent laws provide reasonable protections to consumers. In other words, Monsanto and other firms cannot be allowed to abuse US patent laws to hold farmers inside and outside of the US hostage; otherwise, foreign governments will be less likely to respect US patent laws and reforms.
Patent laws aimed at self-replicating technologies, therefore, must focus on the innovator’s interests in deriving a reasonable profit and in controlling the propagation of an innovation.
Unfortunately, engineered genes and other biotechnologies often have the added complication of being self-propagating. This means consumers may lose the ability to choose to use a product after they have used it once, as is often the case with Roundup Ready seed after a farmer or neighbor farmer has decided to plant the seed. Alternatively, patent holders may lose the ability to earn profits when any benefit is the result of the unintended use of their product. Fortunately, this distinction means a solution to the conundrum can be derived by differentiating between self-replicating technologies that are easily replicated, software for example, and self-propagating technologies.
Accordingly, US and international patent laws need to be clarified to specifically address self-propagating technologies. One means of providing for all the interests at hand and circumventing a myriad of ethical questions is to disallow the direct patenting of genes and the expression of genes. Instead, patent holders should be granted patents that ensure they have the right to any profits that might be derived from the leasing of the production and the commercial sales of their technologies. In tandem, patent laws for self-propagating technologies should require patent holders to set strict timetables in their leasing agreements that include remedies for any breach of the agreement and a means of terminating the agreement. In the case of the inadvertent propagation of a given technology, patent laws must also clarify when the patent holder is liability for any damages and what remedies the patent holder must take.
The purpose for the differential treatment of self-propagating technology is to ensure innovators consider the potential issues that might arise from a given self-propagating technology before a patent is issued and legal battles become necessary. Meanwhile, revising the law would also clarify when a patent holder has the right to pursue an individual for the use of their innovation and help discourage the widespread misuse of self-propagating technologies that might represent a catastrophic danger if commercialized in a thoughtless manner. Obviously, this adds extra costs and complications to the patent process, so any legislation should be drafted in such a way that the US Patent and Trademark Office is compelled to provide guidance as to what measures would fulfill the necessary criteria. Moreover, patent laws need to be revised to address the numerous issues created by self-propagating technologies, as well as other self-replicating technologies.
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