Plants, Patents, and Seed Innovation in the Agricultural Industry (CRS Report for Congress)
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| Release Date |
Sept. 13, 2002 |
| Report Number |
RL31568 |
| Report Type |
Report |
| Authors |
John R. Thomas, Resources, Science and Industry Division |
| Source Agency |
Congressional Research Service |
Summary:
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 seed-bearing 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.
