Category: Intellectual property rights

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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!

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Nibbles, Menu edition: Garlic, Potatoes, Meat, Tomatoes, Ramps, Bananas, Chocolate, Coffee, Pepper breeding, Local cattle in RSA

Well, that was fun.

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Access to article about open access not open access

There’s an article in the top-ranking Journal of the American Dietetic Association entitled Open-Access to Nutrition Research Information: A Public Policy Debate. This is important. There have been some interesting analyses of the impact of open-access publication on things like citation and impact of research work. And research on nutrition is of vital concern for public health. So a public policy debate is clearly a good idea. I wonder what Jackie W. Ammerman, author of the paper, has to say on the topic. Oh no! The article is behind a paywall! h/t Corby Vorland

You simply cannot make this stuff up.

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Farmers take on Monsanto

At the end of March a group of individuals and organizations associated with organic food sued Monsanto in the United States District Court, Southern District of New York. The full suit is available from the Public Patent Foundation, which “Represents the Public’s Interests Against Undeserved Patents and Unsound Patent Policy” and which brought the suit on behalf of the 60 plaintiffs. There is also a PubPat press release and many summaries around the web, for example at Baker Creek Heirloom Seeds. Monsanto responded on a company blog.

David’s claim against Goliath is intended to ensure that Monsanto cannot sue for patent infringement should one of its genes turn up in seeds or plants produced by organic or heirloom growers in the US.

The merits of the claims are not my concern, and I was reluctant even to note the lawsuit here, because any discussion of GMOs rapidly deteriorates into the same old same old, but talking it over with colleagues it is clear that there is a fundamental issue of agricultural biodiversity at stake.

Farmers may choose to grow GM varieties for all sorts of reasons. As the GM varieties spread they edge out pre-existing varieties, as “improved” varieties always seem to do. In technically-advanced farming systems, those pre-existing varieties are likely to be improved themselves, rather than the farmer landraces we normally bang on about here, but that doesn’t make them any less valuable. Farmers who want to grow those varieties rather than GM varieties will be hard pressed to find them. Seed merchants who want to produce those varieties rather than GM varieties may be reluctant if there’s any chance of cross-fertilisation and a visit from corporate heavies, as will the farmers when they come to market their harvest.

The issue here is not the safety or otherwise of GMOs. It is not about the way Monsanto behaves (although it is possible that if Monsanto behaved differently, the suit would not be needed). It is about being able to grow what you want to grow.