Plant breeder incentives; are Plant Patents a help or a hindrance?

A recent blog post added to the arguments questioning the value of property rights over plants. Rather than riff on that from a position of confusion, I sent it over to our friend Kay Chapman at CAS-IP. Here’s her take on the topic.

The original paper being discussed in the blog post asked the question “Did Plant Patents Create the American Rose?”. ((Moser, Petra and Rhode, Paul W., Did Plant Patents Create the American Rose? (January 4, 2011). Available at SSRN.)) Moser and Rhode concluded that:

“Using plant patents as the sole indicator of innovation suggests that the answer is yes … A closer look, however, suggests patents played at best a secondary role, and that U.S. breeders mostly used patents strategically to protect themselves from litigation.”

The blog post at Human flower Project (perhaps somewhat unfairly) draws the conclusion from the paper that:

“… there’s evidence that the Plant Patent Act may have served to suppress horticultural innovation rather than stimulate it”

Why is this debate of interest to us? The research is about roses, but the Intellectual Property Rights discussion could apply equally to other plants and crops.  In our area this debate becomes even more heated when publicly funded research and development issues are added into the mix.

It’s always useful that we a) take note and learn from these discussions, and b) that we remember the balance that needs to be struck between protecting individual rights, and effects on the wider community.  The patent system was always supposed to tread this line. There is more than one type of IPR available to plant breeders. In the US a Plant Patent is just one of three forms of formal protection available for plants from the US Patent and Trademarks Office, along with Plant Variety Protection (PVP) and the Utility Patent.

Protection is certainly not a one-way street.  Plant Patent Rights are time limited and the patented plant variety enters the public domain (with no rights attached) once the patent expires.  In addition US Plant Patents allow the protected materials to be used for breeding without the need for permission (or a license) from the patent holder, much like the breeder’s exemption for PVP rights. ((See Imazio v. Greenhouses.)) This is not true for utility patent rights over plant varieties.

I would like to question the Human Flower Project’s post in its comparison to Europe.  It was noted that:

“European breeders, without the benefit of patents, continued to lead rose innovation”

But what about UPOV? This isn’t mentioned.

The IPR tools are just one piece of the overall innovation puzzle, and the innovation puzzle is a complicated one!  By raising the awareness of the uses and characteristics of the tools we can help ensure that public sector research navigates this area better.  This could mean taking steps to ensure research falls into the public domain, or using the protections to make outputs available on specific, strategic, development-orientated terms.

The blog post included a great archive photo of the original Golden Delicious apple tree (1931) caged to “prevent competitors stealing shoots.”  That’s certainly one alternative to formal protection!