IP in the age of self-replication technologies

During a recent business trip to Asia, I had the opportunity to discuss the Bowman case with many colleagues and clients.

For the unaware; in Bowman, the US Supreme Court held that chemical giant Monsanto's patent rights in its Ready Round-Up seeds could not be exhausted through the first sale doctrine. A farmer, Bowman, tried the circumvent the patent license on a genetically modified soybean plant by purchasing the seeds from a plant grown from Round up seeds AS opposed to Monsanto directly.

The Supreme Court held that each time the plant produced a new seed, or that seed grew into a new plant which in turn produced new seeds, that event was a new infringement of the patent. The reasoning was that the plant "manufactured" new seeds. By harvesting the seeds, you were essentially harvesting the seed technology, in violation of the patent.

Many commentators have pointed out that the Court's reasoning was highly specific, only applicable to the particular facts at issue. However, I am not convinced.

A reasonable argument could be made that any self-replicating technology, be it biological, informational or mechanical is the functional equivalent to a seed.

For example, computer viruses have the peculiar nature of replicating themselves. Is a software agent which is able to package a copy of itself into a compressed format for transport (i.e. a seed) any different from a biological entity which is able to produce a small portable package containing its build and execution code base (DNA)?

In both instances, the technology has all the features of a seed; storage, portability and self-replication. A single computer virus is capable of replicating itself infinite times. So are seeds.

This opens the door to all manner of self replicating technologies.  For example, imagine a patentable custom-made virus or bacteria designed to infect a person with the goal of generating a specific medicine to treat a chronic illness. Once in the body the organism replicates and continues to provide live saving medicine. Excellent. However, what if the patient decides he doesn't want the treatment? It is possible that even after a course of antibiotics, or anti-viral, the organisms could continue to live on in the subject.

Is that patient now infringing? If not, why not? How is a patient who schemes to contract this patentable virus from a friend, not the same as Bowman?

Autonomous technology is a fascinating field which holds significant promise to reshape the very basic tenants of society, economics and health.  However, it is too easy to try to fit essentially identical technologies into different classes based on how we intuit them. Seeds are different from computer viruses, which are different from designer organisms. The principals underlying all these technologies are highly correlated. We would all be better off if we formulated a framework now, then doing it piecemeal later.

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