Within the United States, there are three commonly referenced milestones which have shapes Intellectual Property protection as it pertains to various plant crops. They are not mutually exclusive; some plant types are eligible for only one type of protection while still others may be eligible for two types of protection or all three. To best understand your options, we need a brief history lesson:
Plant Patents and the U.S. Plant Patent Act of 1930
This law established patent rights for developers of new varieties of many asexually propagated plants, for example apple trees and rose bushes that are propagated by cutting pieces of the stem rather than by germinating seeds. Tuber-propagated plants, such as potatoes, were exempt from patent coverage because the part of the plant used for asexual propagation was also the part used as food. The PPA of 1930 created what we now know as Plant Patents.
Utility Patents for Plants
The 1985 legal decision known as Ex Parte Hibberd declared that utility patents, available to inventors since 1790, could be applied to plants. A utility patent is often sought for products related to genetic engineering because the utility patent can apply to the method used to engineer a plant, the genetic sequences that are inserted, and the plant that results. The Terminator patent is an example of a utility patent. It claims patent protection for the method used to make Terminator plants as well as the seeds and plants that are made. There is no exemption for farmers or plant breeders to use materials protected by a utility patent.
PVP Protection and the U.S. Plant Variety Protection Act of 1970
This law established patent rights for developers of new varieties of seed-propagated plants (with a few exclusions), but not F1 hybrids. Under the farmers’ exemption, farmers were allowed to save patented seeds for use on their own farms and could sell patented seeds to other farmers. Under the breeders’ exemption, plant breeders could use patented plants to develop new patentable varieties.
- 1980 amendment: carrots, celery, cucumbers, okra, peppers, and tomatoes were added to the list of patentable plants.
- 1994 amendment: F1 hybrids such as hybrid corn and tuber-propagated plants such as potatoes were added to the list of patentable plants. The farmers’ exemption was restricted. Farmers are still allowed to save patented seeds for use on their own farms, but cannot sell patented seeds to other farmers. The breeders’ exemption was restricted. Plant breeders cannot patent new varieties that are essentially derived from already patented varieties.
This is a more economical options for protecting seed crops (sexually reproduced plants) by comparison with Utility Patents for Plants. However, the protection afforded by PVP Rights is nowhere near as strong as that of a Utility Patent.
As you can see, depending on the type of plant you wish to protect, there are various ways in which to achieve this: Plant Patents, Plant Variety Protection, and Utility Patents. Some provide more protection than others and some are easier or more difficult (and costly) to obtain. So there are both pros and cons of each which a Breeder should evaluate before deciding the best course of action to achieve the desired objective(s). For our purposes here, let’s focus on the use of Utility Patents vs. Plant Patents for the protection of new plant varieties; these will be the two most commonly applied forms of IP protection for turf & ornamental plant breeders simply because they afford far superior protection for breeder’s rights within the United States.