Intellectual Property Rights for Plants

Till the end of the 20th century, US utility patent statutes excluded patents on living organisms. The IP needs or demands of the plant and seed propagation industry led to a number of IP rules to allow IP on plants despite this exclusion. After a series of complaints by nursery owners, the US Congress created the PPA in 1930 to permit intellectual property protection (IPP) of asexually propagated plants, which propagate by cuttings rather than seeds. Over the years the court traditions construed this law quite strictly to apply only to asexual propagation, and that infringement occurs only when the act of acquiring shoots or plant material is proven, not merely by genetic similarity (Kesan and Janis, 2001).

In 1970 Congress created the PVPA, which allowed IPP of plants propagated by seeds. Similar to utility patent statutes, the PVPA has a research as well as a farmer use exemption. The research exemption allows the use of PVPA-protected seeds in research, whereas the farmer exemption allows farmers to replant from PVPA-protected seeds they grew the previous year, 'bin-run seeds'. However, it does exclude the farmer from selling those seeds to other farmers, a practice commonly called 'brown-bag seeds'. Most studies of the effects of the PVPA (see e.g. Butler and Marion, 1985; Lesser and Mutscher, 2002) have concluded that the introduction of this type of IPR did not induce a significant increase in the amount of research conducted by the industry.

In 1980, the Supreme Court stepped into the fray with its 5-4 decision on Diamond v Chakrabarty, which held that genetically modified (GM) bacteria could be patented within the scope of US patent statutes. This decision, which was the linchpin to the explosion of biotechnology patents in the late 1980s and 1990s, was not clarified as being applicable to plants until 1985 when, in ex parte Hibberd, a utility patent application for a type of corn seed, the patent office's board of appeals concluded that Chakrabarty did apply to plants. The utility patent statutes have higher levels of standards for novelty and utility than the PVPA, and have neither a farmer nor researcher exemption, such that farmers cannot 'bin-run' seeds with utility patents and researchers cannot use them without licence. On the other hand, as the US patent office infrastructure in publicizing utility patent application contents is better than that used for the PVPA, the utility patents provide much more exact information for the public domain.

Given these changes, after 1985, seed producers had two methods to protect their IP - a PVPC and a PUP - and could even apply for protection on both property rights. The issue of joint protection using both PVPC and PUP was resolved in December 2001 by the Supreme Court decision in J.E.M. Ag Supply Inc. v Pioneer Hi-Bred Int'l Inc., which held that concurrent protection under the PVPA and the utility patent statutes was fine.

This history of IPRs has created a number of different regimes for seed producers. The first regime, which lasted until 1970, had no available IP except for keeping company secrets. In this period corn seed producers developed closely guarded 'closed pedigree' seeds that only partially protected their germplasm from use by rivals. After the 19 70s, they had the option of applying for PVPCs for their seed varieties. In 1985 utility patents were added to the IPRs portfolio, but with some uncertainty as to their validity when concurrent with a PVPC. In 2001 this uncertainty was resolved with plant and seed firms that were able to use a full menu of choices to protect their technologies: (i) trade secrets kept in hybrids; (ii) PVPCs; (iii) utility patents; and (iv) a combination of these three methods.

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