Plant Breeders are Learning the Value of Protecting Their Inventions

Agricultural espionage: it’s not exactly the stuff of John le Carré novels. But recently a Chinese woman was charged in a plot to steal U.S. corn technology. Among her alleged techniques: smuggling bioengineered corn seed in boxes of microwave popcorn packed in luggage to Beijing, and conspiring with insiders to steal genetic sequencing for the seeds.

 While this case involves seeds developed by agri-giants DuPont Pioneer and Monsanto, plant breeders of all sizes are increasingly at risk in today’s global economy. It’s not just theft—it’s the risk of losing the benefit of the huge research investment that goes into many agricultural products.

 “A pound of seeds for certain tomato varieties is worth more than a pound of gold,” says Rachel Krevans, a partner in Morrison & Foerster’s San Francisco office and chair of the firm’s IP Litigation Practice Group. “This is extremely valuable and tangible intellectual property, and it needs to be protected.”

 Many breeders remain uninformed about these risks, notes Krevans. “It’s a complex arena, and there are several different paths for obtaining IP protection for plant varieties. In some cases, breeders will want to pursue multiple paths,” she says. Breeders have three main options for protecting plant varieties in the United States:

  • Plant patents issued by the U.S. Patent and Trademark Office for new and distinct, invented, or discovered asexually reproducing plants.
  • Utility patents issued by the USPTO for seed-producing plants and plant traits.
  • Plant variety protection (PVP) certificates issued by the U.S. Department of Agriculture forseed-producing plants.

 In addition, breeders often pursue trademarks in conjunction with patents or PVPs to ensure that a brand name can only be used with permission of the owner.

 “The value of a utility patent, versus PVP protection, is that the patent holder can prevent competitors from using a variety in breeding,” says Dr. Michael Ward, a Morrison & Foerster partner and chair of the firm’s Patent Practice Group. By contrast, PVP certificates protect the right to sell seeds but give competing breeders the right to use the protected variety in breeding.

 “Also, PVP protection covers just a single variety, while utility patent protection can be much broader, covering multiple varieties with claims to traits or claims relating to breeding methods and food product use,” he says.

“It’s a complex arena, and there are several different paths for obtaining IP protection for plant varieties.”

 The number of utility patents granted for sexually reproducing plants rose from 497 in 2010 to 1,037 in 2013. With 581 applications granted in the first half of 2014, this year’s numbers are expected to hit a new high.

“Farmers are demanding seeds that will grow in difficult, high-stress environments, providing resistance to drought, pathogens, and other threats,” says Ward. “Developing these new varieties represents a huge commitment of time and money, and a growing number of breeders are recognizing the need to protect investments by having clearly defined IP strategies.”