From today’s NYTimes Opinion Piece:
The knockout punch for farmer-controlled seed was the utility patent. In a landmark (and utterly bananas) decision in 1980, the Supreme Court ruled in favor of allowing patents on living organisms. It wasn’t long before the same protections were extended to crops. New advances in genetic engineering supported the argument, with companies claiming seeds as propriety inventions rather than part of our shared commons. Utility patents restricted farmers’ freedom to save and exchange seed and breeders’ right to use the germplasm for research. . . .
On his Oregon farm, Frank Morton produces 146 varieties of organic lettuce, 88 of which he created. His lettuces … are coveted by top chefs for their distinct colors, flavors, crispiness and butteriness. In three decades of breeding, he has never filed for a patent on his lettuce varieties, because he wants others to build on his work. “Patents are completely unethical. We all need access to traits. My varieties are probably being used to create new varieties right now. I love that.”
Dan Barber, Save Our Food. Free the Seed (June 7, 2019).
Plant Patents: This week, the USPTO issued a number of plant patents, which cover new varieties of asexually reproduced plants.
Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.
35 U.S.C. 161. Like utility patents, plant patents last for 20 years from the filing date. Plant patents are examined under the same provisions as utility patents: patentable subject matter, utility, novelty, obviousness, and disclosure (35 U.S.C. 101, 102, 103, and 112) with a bit of leeway definiteness (like design patents, the claims are generally directed to the plant as “shown and described”).
It is a bit tricky here to understand how self-injury prior art works with plant patents. Most new varieties take several years to cultivate to ensure that the the variety is distinct through successive generations of asexual propagation. Growing of the crops (and presumably selling the fruit) would have the look of prior art on sale and public use activity (as well as being “otherwise available to the public).
Take PP30,551, covering a new apple variety that issued this past week. The patent states that the new variety was first observed in 2009 as a “spontaneous limb mutation” in an commercial orchard and then cultivated (by grafting) from 2011 until the application Australian priority filing date in 2016.
During examination, the examiner did require the applicant to provide any evidence that regarding the public nature of the invention from 2009-2011.
Going back up to the NYTimes article and the Lettuce farmer. There are no plant patents on lettuce because lettuce is sexually propagated. Lettuce can still be protected under the USDA administered Plant Variety Protection Act (PVPA) — also for 20 years. So far in 2019, the USDA has issued 222 PVPA certificates — 5 of which cover new varieties of lettuce. (Most of the new certificates have been issued to Monsanto).
“There is now a patent on ‘low pungency’ onions and ‘brilliant white’ cauliflower. There are patents on grape tomatoes with enhanced sweetness and a long ‘shelf life’ gene and a patent on a ‘pleasant tasting’ melon (which sounds as tempting as toothpaste). For lettuces, there are too many to count — salad greens are some of the most lawyered-up vegetables in your refrigerator.”
“A carrot breeder recently told me about working on a new variety of purple carrot only to bump up against restrictions for the level of purple color: ‘I had to be careful I didn’t infringe on their ‘purpleness’ patent and instigate a lawsuit, so I stayed clear.'”
I am not the expert, but the first statement strikes me as completely false and the carrot farmer sorely misinformed. I would appreciate the comment of an expert.
As I understand, the rights obtained in a plant patent pertain to a particular “variety,” not characteristics. Likewise, in utility patents referenced in the article, the claims are limited to certain varieties. Isn’t one is free to produce a plant with the same characteristics so long as it is not the same variety? Doesn’t one avoid infringement claims merely by demonstrating a different plant parentage or genetics?
Different characteristics are what define what a variety is. What’s the difference between a Pink Lady apple and a Honeydew apple? Both have a common ancestor. It’s the color and taste that differentiate them.
Flower shape, size, firmness of fruit, any of these can be criteria for a new variety.
The thing about plant patents is you have to prove access. Otherwise, your infringement wasn’t enabled. You can’t create a plant out of common materials, you actually have to take it. So if you’re worried about stopping up the market with patents, what you’re really worried about it basic theft. Which I’m pretty sure we can agree is… illegal.
Great, thank you for the explanation. So, could the carrot breeder produce a non-infringing, new variety of purple carrot that is just as purple as the patented carrot, but not the same variety as evidenced by another trait? perhaps a different taste, maximum size, growth rate, carrot top shape or color?
Just a quick note – the article’s talk about seed saving is just wrong. The 2013 update made an exception for research and replanting – you just can’t resell the saved seeds (under PVPA, not utility, but anyway). (link to agrilife.org)
Also – for the 2009-2011 issue – sales related to the experimentation on the variety don’t count as sales (7 USC 2401(b)(1) and (2)) and public use or sales don’t count for 6 years for trees (7 USC 2402(a)(1)(B)(ii)).
Thanks PG – Just to note here for future readers: The statutory exceptions noted apply only to rights protected under the PVPA — and don’t apply directly to either utility or plant patents.
Most plant breeders (99%? minimum number) don’t bother patenting their plants.
Yes I know a lot of them.
Ben >>The inventor who “invents” a result and needs to claim the immediately apparent multitude of ways of achieving that result, has not contributed much.
This is one of the most ignorant statements I have ever read. You have no idea what you talking about.
The way it works with real inventions is that the inventor figures out some way to do it and then gives it to me and I realize that there are 100’s of other ways it can be done. In fact I work with Ph.D.’s in EE all the time. They all say the same thing. Here is a couple of ways to do it, but, of course, there are so many other ways that this could be done. The invention is the set of all the solutions that perform the function that are enabled by the specification and what is know by any one in the art.
The way it works is inventors in the EE/CS field do not just think up functions as they have to enabled. The whole point is that they only think up the new functions that can be enable.
The invention is the set of all the solutions that perform the function that are enabled by the specification and what is know by any one in the art.
Note the unintended irony of using the term “shared commons” in apparent ignorance of how that practice turned out historically.
[In addition to apparently misrepresenting that farmers are prevented from sharing their own developed seeds (as opposed to copies of patented seeds from others who had paid the R&D to develop novel seeds they were copying)]
Paul,
I am not sure that I am following the point that you want to make with the comment of “apparent ignorance of how that practice turned out historically”…
Are you referring to the historical disaster of Leftist “Commune” political states in relation to innovation?
No, this is re historic “shared” town “commons” free grazing land areas in England, which were overgrazed and rendered useless for everyone by the owners of larger cattle herds. E.g., the ecologist Garrett Hardin’s influential 1968 article called “The Tragedy of the Commons.” I was surprised that a NYT article author suggesting that would not know that.
Ah, thanks.
(but I would point out that the underlying mechanism is ALSO at play in the failed Far Left governmental systems – even if that was not your point).
Glibertarians are truly the worlds silliest people.
Your mindless ad hominem is noted
Our land-grant college system — conceived to promote agriculture and technical education — has been, for more than 150 years, the envy of the world. These universities were home to thriving public plant breeding departments until a wave of defunding in the 1980s gutted them.
This is actually a good point. Our public funding of science has never really caught up (in inflation adjusted terms) to the levels from before the 2007 cuts, to say nothing of the high-point of the 1990s. Publicly funded research pays huge dividends down the line. Now that our economy is roaring again, we would do well to boost public funding of basic science—including plant breeding research—substantially.
I agree – but this cannot be taken in a vacuum, as the entire model of “basic research” has changed dramatically since those earlier time frames that you mention.
LOL
The “entire model” of basic research has changed since 1995? What’s your evidence for that?
Thanks for adding the deep point about the vacuum, though. Very serious stuff.
I did not mean “1995” in my reference of earlier times – try 1980s.
LOL
Answer the question, genius. You’re a very serious person!
Meh, No.
I guess that you will have to take my word. That is if you have some compelling notion as to why the decades between the 80’s and the present day would NOT change the model of baric research….
Pleas feel free to show your keen insights.
Um do you ever show your keen insights?
Patents are completely unethical. We all need access to traits. My varieties are probably being used to create new varieties right now.
Would this even be an infringement? For plant patents, I don’t think so. Not sure about utility patents, supposed it depends on how the plant is used to create new varieties.
ethics and law…
Sorry, but who exactly anointed the author of the statement as the arbiter of ethics for all?
Where else have I seen those without a firm grasp of the terrain of law try to import “ethics”,,,?
Marty?
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Marty?
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Marty?
At the risk of belaboring the tediously obvious, if a farmer wants to follow the XIX century practice of saving seeds from year to year s/he is free to do so—with off-patent seeds. There are plenty of good off-patent seeds out there, if you plan to farm with the sort of labor-intensive methods common before the Green Revolution.
It was not patent law that did away with this old arrangement. It was a million social trends: the first and second World Wars; mass electrification; eradication of several formerly dangerous diseases by means of sewage treatment, iodized salt, mass vaccination, & penicillin; the establishment of land grant universities and their concomitant ag extension programs; etc. In short, the “problem” is not patents, but rather modernity. You could change the patent law to allow seed saving, and it would not change anything that the author here considers important.
…anyone else notice the irony that to read an “anti-establishment” article, one must “join” a big established media group…?
Queue up the Bowman v. Monsanto issues (that have never been addressed)…
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