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Three Blockbuster Patent Cases at the Supreme Court This Term
Date:1/17/2013

permission of patent owners.

“Seed technology contributed to vast increases in crop productivity. Most soybean, corn and cotton are grown in an industry worth more than $25 billion worldwide. These seeds are ‘self-replicating’ technologies because they lead to seed that can be re-planted again and again,” Lim explained.

Since 2010 Monsanto, however, got $20 million by suing 400 farmers for infringement. Indiana farmer Vernon Bowman argued that allowing Monsanto to prevent re-planting contravene laws that cut off that control once seeds are sold. Monsanto and the U.S. government contend that patent law allows this control to protect the ability of patent owners to recoup their investment.

Lim was a co-consultant to the American Antitrust Institute on its amicus brief to the United States Supreme Court in the Bowman case.

“This case has implications for other forms of self-replicating technologies such as cell lines, virus strains and microorganisms, including those found in the earliest Supreme Court cases which helped spur the biotech boom,” the intellectual property law expert stressed. “Siding with Farmer Bowman may result in more robust rights for farmers and users of patented technology in general. But interpreting this ‘first sale doctrine’ too broadly may destabilize innovation incentives in these industries.”    

As the final arbiter on patent law, the Court’s focus on these industries “worries some patent practitioners, who think its recent decisions were based on a misaligned view of how these industries work,” he added.

The Federal Circuit was created thirty years ago as a specialist court of appeals to harmonize patent law but it has also produced many cases favoring patent owners.

“Some Federal Circuit judges today question past orthodoxy on what it takes to promote innovation. What is clear is that this is the beginning of a new normal for both the Federal Circuit and the
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