The Essential Facilities Doctrine in the Sunlight: Stacking Patented Genetic Traits in Agriculture

(Excerpt) The intersection between the fields of patent law and antitrust law has long been an area of controversy. One antitrust doctrine in particular is potentially important in the realm of synthetic genes: Under the essential facilities doctrine, a monopolist has a duty to provide competitors with reasonable access to \u27essential facilities,\u27 facilities under the monopolist\u27s control and without which one cannot effectively compete in a given market. Arguably, the Roundup Ready trait for soybeans is an essential facility to competition in the field of traits generally. This Note argues that the essential facilities doctrine should apply to synthetic gene patents; while the facts ultimately will determine the outcome of this particular case, the doctrine should be available to courts in order to create and maintain a thriving market for genetic traits having both innovation and consumer choice. Part I discusses the history and legal status of the essential facilities doctrine, which has long been controversial in the United States, but has received acceptance abroad. Part II explores the applicability of the doctrine to patents, which remains in question. In addition, Part II presents the arguments made for and against the essential facilities doctrine and argues that patents do not deserve special protection from the Sherman Act or essential facilities jurisprudence. Finally, Part III argues that a patent on a synthetic gene should, under appropriate conditions, be considered an essential facility subject to compulsory licensing