Bowman v. Monsanto Co.: A Bellwether for the Emerging Issue of Patentable Self-Replicating Technologies and Inadvertent Infringement

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies. Typical examples include denying patent rights to "second generation" self-replicating products, and even broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, Congress and the courts have at their disposal a variety of doctrinal tools that could effectively shield legitimately inadvertent infringers from liability without unduly weakening the ability of patents to incentivize investment in the development of self-replicating technologies. A failure to do so could have dramatic unintended consequences for a host of emerging self-replicating technologies in areas as diverse as synthetic biology, nanotechnology, computer software, and even space exploration. Congress and the courts have already addressed problems of inadvertent copyright infringement that have arisen with respect to software and other digitally encoded content, and some of the same fundamental principles could be recruited to address the emerging issue of inadvertent patent infringement caused by the increasing prevalence of patentable self-replicating technologies. At the same time, innovators in self-replicating technologies might need to seriously consider the implementation of technological restrictions on copying as a practical alternative to patent protection.