Remaking Making: Integrating Self-Replicating Technologies with the Exhaustion Doctrine

Abstract

Self-replicating technologies such as genetically modified organisms have unquestionably improved the farming industry. In order to ensure continued innovation in this area, the law has increasingly established protections for this technology. Although the exhaustion doctrine serves as a limit to a patent holder’s rights, the application of the current patent infringement regime may be over-inclusive as self-replicating technologies continue to advance. This Note identifies Bowman v. Monsanto as a recent example of how self-replicating patented products could lead to blanket infringement liability, including for innocent infringers. This Note recommends that the definition of “making” be redefined to include only those who knowingly reproduce a patented article. This new, more precise definition of “making” will improve the modern patent infringement framework and successfully integrate self-replicating technologies into the current exhaustion doctrine.