Increased Ip Options For Breeders Of Asexually Reproduced Plants Varieties

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On Thursday December 20th, President Trump signed into law the Farm Bill 2018, which is officially known as the Agricultural Improvement Act of 2018.  For breeders and growers of asexually reproduced plant varieties, this law is monumental as it broadens The Plant Variety Protection Act (PVPA) to include asexually reproduced plant varieties, thus opening a new intellectual property (IP) protection avenue to these breeders/growers.

Until now, IP protection for asexually reproduced plant varieties (e.g., reproduced by budding or vegetative cuttings) has existed only in the form of patents (Plant Patents and Utility Patents), which issue from the United States Patent and Trademark Office.  In contrast, plant varieties that are propagated sexually (i.e., through seeds) or through tubers could be protected via a Plant Variety Protection (PVP) certificate under the PVPA, which is issued by the United States Department of Agriculture.  This has now changed with the passing of the Farm Bill 2018, which extends PVP protection to asexually reproduced plant varieties. 

More specifically, the Farm Bill 2018 amends the PVPA at four Sections to incorporate protection of asexually reproduced plants: 
(1) to define asexually reproduced as “mean[ing] produced by a method of plant propagation using vegetative material (other than seed) from a single parent, including cuttings, grafting, tissue culture, and propagation by root division..”; 
(2) to award protection to the breeder of any asexually reproduced plant variety; 
(3) to include as an act of infringement “sexually or asexually multiply . . . the variety as a step in marketing (for growing purposes) the variety”; and 
(4) to include asexually reproducible plant material in prohibited acts of false marking.  
See 7 U.S. Code §§2401(a), 2402(a), 2541(a)(3), and 2568(a).

As a result of this change to the law, there are now three intellectual property protection options in the U.S. for asexually reproduced plants: Plant Patents, Utility Patents, and PVP protection.  Each of these has different requirements and scopes of protection, thus allowing breeders to select one or more of these IP protections to pursue depending on their needs and the particular type of plant that was developed.

Both Plant and Utility Patents are issued by the United States Patent and Trademark Office. Plant Patents are specific to asexually reproduced plants, offer protection to only the specific new variety, and require a relatively straightforward detailed botanical description of the new variety.  Utility Patents are available to many types of inventions, including new asexually reproduced plant varieties.  A Utility Patent for a new asexually reproduced variety (so called “Varietal Utility Patents”) can cost somewhat more than a Plant Patent to acquire and the description required for the patent application can be somewhat more difficult to put together due to the differences in legal requirements between Plant and Utility Patents.  In addition, in order to obtain a Varietal Utility Patent, a tissue culture deposit is required, which is not true for a Plant Patent.  Thus, a Varietal Utility Patent can be somewhat more costly and difficult to obtain than a Plant Patent.  However, the scope of protection offered by Varietal Utility Patents is generally broader than for Plant Patents.  For example, Varietal Utility Patents can provide exclusive rights over hybrids, sports, and mutants of the new plant variety, which is not offered by Plant Patent protection.

Like Varietal Utility Patents, PVP protection also requires tissue culture deposit and the application requires field and comparative testing data, making the application somewhat more onerous than a Plant Patent application.  Additionally, a PVP application requires the applicant to furnish a detailed breeding history, which may be difficult or even impossible for certain new asexually reproduced plant varieties.  Because of this, it may not be advisable for a breeder to seek PVP protection in all cases.  However, a PVP offers certain advantages over a Plant Patent in regard to the scope of protection, making this type of protection worth considering in many cases. For example, like a Varietal Utility Patent, PVP protection can encompass not just the specific asexually reproduced variety that was developed, but also can provide certain protections over hybrids and essentially derived varieties. 

Moreover, some of the exemptions under the PVPA that have historically weakened this form of protection are not applicable to asexually reproduced plant varieties, thus increasing the value of PVP protection as it applies to asexually reproduced varieties.  For instance, the so called “farmers’ exemption” of the PVPA allows farmers to save seed of a PVP protected plant variety for use in replanting on their land the following year.  This historically has greatly weakened PVP protection because a farmer would only need to buy enough seed to plant his/her fields one year, and then in all future years the farmer could simply save seed for replanting, thus avoiding the need to ever repurchase seed from the breeder.  However, this weakness does not appear to come into play for asexually reproduced plants.  Because the amendments to the PVPA set forth in the Farm Bill 2018 did not include changes to this portion of the law, the farmers’ exemption appears to be irrelevant to asexually reproduced varieties.  Though farmers are still free to save seed from the asexually reproduced variety, this would have little value since the variety cannot be propagated by seed.  Thus, PVP protection for asexually reproduced varieties provides breeders with the improved protections available under the PVPA without some of the limiting effects of this law.

In summary, the Farm Bill 2018 has provided breeders of asexually propagated plants a new avenue of IP protection to consider.  Because the scope and requirements of Plant Patent, Varietal Utility Patent, and PVP protection differ in certain regards, breeders can now choose to pursue one form of protection or another, depending on their needs, or can choose to pursue two or more forms of protection to form a stronger IP “fence” around their novel asexually reproduced plant variety.  Thus, the Farm Bill 2018 has provided breeders of asexually reproduced varieties increased options for protecting their new varieties.

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