The Exhaustion Doctrine and Genetic Use Restriction Technologies: A Look atBowman v Monsanto

Abstract

The relationship between intellectual property rights and technologies used to protect such rights has been gaining more and more attention in recent years. This has mostly been in the field of copyright and digital rights management technologies (DRMs). However, challenges raised by certain biotechnologies and their inherent reproductive nature have caused patent and plant variety right (PVR) owners to similarly create genetic use restriction technologies (GURTs) to protect their rights. Arguments analogous to those raised in the copyright arena have been made that GURTs exceed the rights of patentees and PVR owners, and prevent permitted uses from being undertaken. This article discusses these arguments in light of recent case law on the exhaustion doctrine, exactly what it is that GURTs do and the permitted uses in patent and PVR law. It concludes that the US Supreme Court decision Monsanto v Bowman, along with the nature of GURTs, the patent specification and the limited exceptions to patent infringement, mean that GURTs actually fit well with patent law and policy. However, the same cannot be said about GURTs used to protect PVRs, due to the different standards for registration and more extensive exceptions to infringement.