Bowman v. Monsanto and the protection of patented replicative biologic technologies

摘要

An important US Supreme Court ruling means that prudent owners, end users and other courts will proceed with caution.Replicative technologies have been, and synthetic replicative technologies are becoming, more and more ubiquitous. The varieties of materials capable of replication are numerous, and include biological materials such as DNA, proteins, larger macromolecular agents and entire organisms themselves1-4. It is likely that plant genetic technologies, such as those applicable to transgenic plants or materials derived from them, for example, will continue to grow, as the number of varietal rights has generally increased over time. And because of their critical bearing on the US and global economy, it is not surprising that such technologies are protectable in the US under several different legal regimes, such as 35 U.S.C. 101 (refs. 5-6), The Plant Patent Act of 1930 (ref. 7), trade secret, and The Plant Variety Protection Act of 1970 (ref. 8), each having unique provisions and jurisprudence. For example, 42% of all such varietal rights were lodged between 2000 and 2008 alone9. Despite the prevalence of thesetechnologies in society, the legal issues surrounding their patenting, including some natural and isolated synthetic DNAs, continues to be under intense debate10-12. Even so, patents based on replicative technologies persist and are continuing to issue from the US Patent and Trademark Office (Table 1).