Intellectual property protection for traditionally-bred plant varieties in the U.S. is both recent and rapidly expanding. The simultaneous existence of three partially overlapping forms of protection complicates the understanding of intellectual property protection to plant varieties. While conceptually patentable subject matter, the nonobviousness standard ... [show]

Intellectual property protection for traditionally-bred plant varieties in the U.S. is both recent and rapidly expanding. The simultaneous existence of three partially overlapping forms of protection complicates the understanding of intellectual property protection to plant varieties. While conceptually patentable subject matter, the nonobviousness standard for patentability is difficult to apply to plant varieties. Most breeding choices are “obvious to try” in the recent KSR context, but the requisite degree of unexpectedness and unpredictability have yet to be determined. Intellectual property protection for plants has contributed to enhancements in investment and productivity. The intent of this analysis is not to restrict protection but to raise the nonobviousness standard for utility patents. After considering several alternative approaches, I propose recognizing nonobviousness only in agronomically beneficial attributes. I show that raising nonobviousness standards for utility patents will relegate Plant Patents and Plant Variety Protection to a lower tier of protection for generational improvements. [hide]

In the wake of the Supreme Court’s ruling in Quanta Computer, Inc. v. LG Elecs., Inc., the patent exhaustion doctrine has gained renewed interest and attention in the patent industry. In Quanta, the Court upheld an accused infringer’s defense based on patent exhaustion, also ... [show]

In the wake of the Supreme Court’s ruling in Quanta Computer, Inc. v. LG Elecs., Inc., the patent exhaustion doctrine has gained renewed interest and attention in the patent industry. In Quanta, the Court upheld an accused infringer’s defense based on patent exhaustion, also known as the first-sale doctrine, which holds that an authorized, unconditional sale of a patented product terminates all patent rights to that product. It marks the first time the Court discussed the doctrine in over 65 years. Quanta clarified the patent exhaustion doctrine in several respects, but it also generated a great deal of uncertainty for patentees, licensees, and potential infringers, and the decision could have far-reaching implications affecting all sectors of the technology industry. This Article discusses the following: the patent exhaustion doctrine and underlying public policy concerns; the application of the patent exhaustion doctrine with respect to combination products, i.e., goods that are combined or converted into patented-protected products after the sale; the actual Quanta decision and the Court’s redefining of the patent exhaustion doctrine; and future implications of and issues left unresolved by Quanta, including those in the context of contract law and biotechnology patents. [hide]