The pending petition for certiorari filed in Bowman v. Monsanto Co., Docket No. 11-796, highlights the interplay between licenses and the patent exhaustion/first sale doctrine in the context of self-replicating technology. This article discusses the background of a series of cases involving Monsanto’s transgenic seed technology that has led to the certiorari petition in Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011), outlines the Supreme Court and Federal Circuit cases that establish the current contours of the patent exhaustion/first sale doctrine, and examines the Bowman case and the questions it raises. Bowman also may be a case study of slighting license drafting and contracts in over-reliance on patent rights.
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