Patenting Plants and Plant Products

Abstract

The United States approach to protect newly developed plant varieties has fed a booming agribusiness industry, but the United States differs from many other parts of the world in terms of its views on patenting plants and public attitudes regarding genetically modified foods. This article reviews the relevant forms of intellectual property protection available to plant breeders in the United States, which includes the Plant Protection Act, the Plant Variety Protection Act, and utility patents under the Patent Act. These forms of protection are compared with the standard conventions available in Europe. Two brief discussions follow. First, the role of public attitudes in acceptance of genetically modified crops is reviewed. This is followed by a brief overview of the ethical and legal context related to bioprospecting.

Key Concepts:

  • The United States plant breeders have three forms of intellectual property protection available for use: PVPA, PPA and utility patents.

  • The United States and European patent systems have been aligned to allow for more uniform international enforcement of patents.

  • Bioprospecting has the potential to uncover powerful new discoveries, but ownership rules must be interpreted for both equity and efficiency concerns.

  • The United States and European consumers generally have differing opinions of the safety of genetically engineered crops.

Keywords: patent; intellectual property; genetically modified food; genetic engineering; patent cooperation treaty; bioprospecting; international convention for the protection of new varieties of plants; plant variety protection act; plant patent act

References

Fernandez‐Cornejo J (2004) The Seed Industry in U.S. Agriculture: An Exploration of Data and Information on Crop Seed Markets, Regulation, Industry Structure, and Research and Development. Agriculture Information Bulletin No. (AIB786) 81pp., February.

James C (2010) Global Status of Commercialized Biotech/GM Crops: 2010. ISAAA Brief No. 42. Ithaca, NY: ISAAA.

Kesan J and Janis M (2001) Weed‐Free I.P.: The Supreme Court, Intellectual Property Interfaces, and the Problem of Plants. Illinois Public Law and Legal Theory Research Papers Series. Research Paper No. 00‐07, November.

Kloppenburg J Jr (1998) First the Seed: The Political Economy of Plant Biotechnology. New York: Cambridge University Press.

Moser P and Rhode P (2011) Did plant patents create the American rose? NBER Working Paper No. 16983, April.

Wright B and Pardey P (2006) The evolving rights to intellectual property protection in the agricultural biosciences. International Journal of Technology and Globalization 2: 1–2.

Further Reading

Busch NA (2002) Jack and the beanstalk: property rights in genetically modified plants. Minnesota Intellectual Property Review 3: 1–234.

Diamond v. Chakrabarty, 447 US 303 (1980). http://caselaw.lp.findlaw.com/cgi‐bin/getcase.pl?court=us&vol=447&invol=303

Gaskell G, Allum N, Bauer M et al. (2000) Biotechnology and the European public. Nature Biotechnology 18: 935–938.

Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560 (Fed. Cir. 1995).

J.E.M. AG Supply, Inc. v. Pioneer Hi‐Bred Intern., Inc., 122 S.Ct. 593 (2001).

Rives E (2001) Mother nature and the courts: Are sexually reproducing plants and their progeny patentable under the utility patent act of 1952? Cumberland Law Review 32: 187–231.

Rories CCP (2001) Does the USPTO have authority to grant patents for novel varieties of sexually reproducing plants? Journal of the Patent and Trademark Office Society 83: 737–758.

Transgenic Plant/NOVARTIS II, G 0001/98 (20 December 1999).

Contact Editor close
Submit a note to the editor about this article by filling in the form below.

* Required Field

How to Cite close
Ergenzinger, Edward R, and Williams, Jeff(Jul 2012) Patenting Plants and Plant Products. In: eLS. John Wiley & Sons Ltd, Chichester. http://www.els.net [doi: 10.1002/9780470015902.a0003364.pub2]