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Plants, Patents, and Seed Innovation in the Agricultural Industry

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Agricultural research and seed distribution systems within the United States have become increasingly privatized. Private plant breeders have turned to the intellectual property system on the grounds that research and development expenses should be recovered. Intellectual property laws allow innovators to appropriate the benefits of their inventions by excluding others from reproducing and selling the protected subject matter.

In recent years, plant breeders have pursued intellectual property rights through three different statutes. The Patent Act of 1952 allows inventors to obtain utility patents, which pertain generally to technological products and processes. The Plant Patent Act of 1930 additionally provides for plant patents, awarded for distinct and new varieties of plants that have been asexually reproduced. Finally, the Plant Variety Protection Act (PVPA) of 1970 provides for the issuance of plant variety protection certificates for new, distinct, uniform and stable plant varieties that have been sexually reproduced.

Due to the overlap among these three statutes, some legal uncertainty existed as to whether plant breeders could obtain multiple, concurrent intellectual property rights. In its 2001 decision in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the U.S. Supreme Court confirmed that an innovative plant may be awarded a utility patent, even though it may also be subject to protection under one of the plant-specific statutes.

Response to the J.E.M. v. Pioneer decision has been mixed. Some observers believe that by enacting more specific legislation for plant innovation, the intent of Congress was to foreclose utility patent protection for such inventions. In addition, some commentators have asserted that the possibility of utility patents for seedbearing plants effectively eliminates certain PVPA provisions that favor farmers and scientific researchers. Others have been more favorably disposed towards this overlap between intellectual property regimes, observing that the rights and responsibilities presented under the three statutes differ.

Should Congress have an interest in legislating in this area, a variety of options are available. If the availability of utility patents for plants is deemed sound, then no action need be taken. Alternatively, if legislative activity is deemed prudent, Congress could impose new restrictions upon the subject matter eligible for utility patents, introduce infringement exemptions within the utility patent statute, or encourage the agricultural industry to develop guidelines on permissible uses of patented plant innovations.