As should be noted for all court case analysis, I am not a lawyer.
On Monday the Supreme Court issued its opinion in Bowman v. Monsanto, a case involving a farmer (Bowman) attempting to use seeds that were descended from Monsanto-engineered seeds. Monsanto believes that its intellectual property covers not only the original seeds and any of their descendants. Bowman argued that the patents do not cover seeds replicated from the patented seeds. The doctrine of patent exhaustion typically means that the intellectual property rights cover only the first sale of a product (this preserves the possibility of used markets in a variety of goods).
The Court ruled unanimously in favor of Monsanto. Instead of considering what Bowman did as resale, the Court considered the replanting and harvesting of Monsanto-engineered seeds as copying, which does not fall under the protection of patent exhaustion. When Monsanto sells the seeds originally, the licensing agreement that must be signed permits selling the resulting seeds as a commodity, and while Bowman purchased the seeds from a grain elevator, he used them for a different purpose, thus violating the license.
The Court makes a point of stating it is limiting its ruling to this particular kind of ‘self-replicating product’
“Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”
While the opinion specifically mentions software programs, I can see the possibility that gene patents could be considered as self-replicating products. How that argument might fare legally is unclear to me. I can see it being interpreted as like making copies, but since the associated uses of the gene patents like the Myriad case is not in discrete products like seeds, I’d resist making such a clear parallel. We should see how the Court looks at this very soon.