Intellectual Property Rights

ASTA Position

Introduction

Seed is the vehicle for many forms of innovation, such as improvement in germplasm, specific genetic and agronomic traits, seed treatments and coatings. Each cycle of innovation adds to the knowledge base and is critical for the continued development of new and better crops that benefit farmers, growers and consumers. The research and development necessary to create and introduce new plant varieties often requires 5 to 15 years and millions of dollars in investment. Effective intellectual property protection reinforces the value and importance of scientific and technological innovations, helps to spur further innovation and provides benefits to society as a whole.

Effective Intellectual Property Protection

Intellectual property protection is most effective when there is a variety of IPR tools available to encourage a wide range of innovations and when there is robust enforcement of those forms of protection. ASTA believes that, worldwide, affordable intellectual property protection systems should be accessible so that innovations can be protected, as determined by the developer. These systems include:

Plant Breeders Rights (PBR)/Plant Variety Protection (PVP)
Patents
Trade Secrets
Contracts
Trademarks

Robust intellectual property enforcement not only protects investments but also ensures that the farmer and society as a whole receive the full benefit of innovation. Enforcement should be:

Fair and equitable
Timely
Effective
Consistently applied
Reasonable and accessible

The Benefits of Intellectual Property Protection

Supporting the needs of an increasing world population in a sustainable fashion, while protecting the environment, requires ongoing innovation in all agricultural cropping systems, including seeds, that supports improved productivity and nutritional content.

One of the key drivers of innovation within any industry is the capital that is invested in research and development. Robust intellectual property protection attracts the size and scope of investment necessary to develop improved seed varieties. These investments are generally long-term; may require significant amounts of capital resources; and entail large financial risks. Investments in research and development by the seed industry are directly related to the effectiveness of the intellectual property protection. These investments allow the public and private sectors the employment of skilled professionals, the development of new tools, rational land use, and access to specialized equipment–all of which will enable them to continue bringing innovations in the form of improved seed varieties for farmers and new products for consumers.

Effective intellectual property protection through PVP or patents is important as a driver of innovation, and provides a discrete period of protection and choice of protection types. Intellectual property protection of an improved seed variety supports the fundamental concept of a social contract made by the intellectual property right owner when the improved seed variety enters the public domain upon expiration of protection. This balance of protection and access contributes to achieving a wide diversity of improved varieties for farmers, resulting in increased agricultural productivity with resultant benefits to consumers and improved environmental sustainability.

ASTA stands ready to work with others to provide global leadership in the enhancement of intellectual property systems for the benefit of improved agricultural productivity and resource conservation.

Appendix: Intellectual Property Rights Tools in the United States

Plant Breeders Rights/Plant Variety Protection

The current UPOV system as enacted in 1991 provides exclusive marketing rights for a single variety, its harvested material, and, optionally, for products made directly from it. Plant Variety Protection (PVP) provides exceptions for experimental use by third parties for the purpose of plant breeding and new variety development. An exception for farmers permits them to save seed for the limited purpose of propagating for use on their own holdings. A PVP certificate is granted if the new variety is distinct, uniform and stable. These rights extend for a fixed period of not less than 20 years from the date of the grant of the PVP certificate. At the end of the protection period, the protected material enters the public domain, subject to any other existing and enforceable intellectual property rights.

Utility Patents

A Utility patent can be used to protect single varieties in the United States as well as specific plant traits, methods and processes. Utility patents in the United States do not provide for a research exemption. There is no exemption that allows farmers to save seed in the case of using a utility patent to protect a single variety. A patent is granted if the invention is shown to be novel, nonobvious, and is adequately described (enabled). The term of protection for a utility patent is a fixed period of 20 years from the date on which the application for the patent was filed. At the end of the protection period, the protected material enters the public domain, subject to any other existing and enforceable intellectual property rights.

Trade Secrets

A Trade secret covers proprietary information, such as a formula, method, technique or process. This information must have intrinsic value and be economically valuable to the competitors who do not have the information. Reasonable efforts must be made to maintain secrecy by the entity claiming the trade secret. There is no specified protection period for a trade secret.

Contracts

A contract is an agreement between an intellectual property rights owner and another entity. The contract stipulates the parameters under which the other entity may use that intellectual property, including an agreed payment and conditions of use. Each contract has its own conditions as negotiated between the contracting parties.

Trademarks

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods, such as seed varieties, of one party from those of others. A trademark is registered to assure its exclusive use by its owner. A trademark cannot be applied to goods or services without permission of its owner.

Issues

The AgAccord

Beginning in 2010, the Biotechnology Industry Organization (BIO) and the American Seed Trade Association (ASTA) and their members engaged key stakeholders to address the opportunities and the challenges associated with patent expiration. The result of this dialogue was the development of a framework, called the Accord, a private-sector driven mechanism that provides for the transition of regulatory and stewardship responsibilities for biotechnology events, after patent expiration.

Visit www.agaccord.org for more information.

Resources

The Seed Innovation and Protection Alliance (SIPA)

SIPA was created to provide a unified and consistent voice for education and best practices around intellectual property protection and its value to our society. SIPA works to realize its mission by promoting and encouraging the high standard of business ethics among its members and the seed industry and is guided by a Code of Conduct. SIPA encourages its members as well as the agriculture community to honor all obligations and contracts between seed companies, suppliers, and customers involving the use and protection of intellectual property. Such obligations and contracts include licensing agreements and agreements governing confidentiality and trade secrets as well as honoring all valid obligations and contracts involving the production, marketing, distribution, or sale of seed. SIPA committed to best practices related to the identification, promotion, and protection of seed innovation.

Ag Accord

The International Seed Federation

The International Seed Federation represents the interests of the mainstream of the seed industry at a global level through interaction and dialogue with public and private institutions that have an impact on international seed trade.

US Plant Variety Protection Office

PVPO administers the Plant Variety Protection Act (PVPA), by issuing Certificates of Protection in a timely manner. The Act provides legal intellectual property rights protection to breeders of new varieties of plants which are sexually reproduced (by seed) or tuber-propagated.

US Patent and Trademark Office

The United States Patent and Trademark Office (USPTO) is the Federal agency for granting U.S. patents and registering trademarks.

UPOV

The mission of the International Union for the Protection of New Varieties of Plants is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.

Simple Sequence Markers

Molecular Marker Article

Genetic Data

FAQs

Why are intellectual property rights necessary for the seed industry?
What types of intellectual property protection are available in the United States?
What are the advantages and disadvantages of the different types of IP protection?
Who determines what type of intellectual property protection is required?
Can the public sector access patented seeds?
Do intellectual property rights only benefit large companies with deep pockets?
Why is it important for developing countries to adopt intellectual property laws?
What are the risks of selling patented seed in countries that lack patent protection?
What is ASTA’s position on mandatory licensing?
What is ASTA doing to advance intellectual property rights protection?

Why are intellectual property rights necessary for the seed industry?

Strong intellectual property protection allows developers of new plant varieties and improved seeds to be rewarded for their efforts. This promotes research and development, which ultimately enhances crop production and conservation of genetic resources. Research and development investments are generally long-term and require significant amounts of financial resources. In order to justify the size and scope of research spending necessary to develop new varieties, especially if genetically enhanced through modern techniques, companies must be able to recoup their original investment as well as make earnings on it. In addition, intellectual property protection underscores the phrase “good fences make good neighbors” by preventing duplication of research efforts. If breeders were all permitted to work with a small set of “popular” varieties, the germplasm base would be narrowed. Granting exclusive rights to specific varieties also gives a level of control to developers to enforce resistance management practices or other environmentally sound measures during their period of exclusivity.

What types of intellectual property protection are available in the United States?

Several types of intellectual property protection are available in the United States that allow an inventor to match the form of protection with the value of the invention. One type of protection is offered by trade secret, whereby the inventor does not publicly disclose any information about the invention, but the invention is subject to being discovered and copied. Trade secrets may be enhanced with either license or use agreements, but still offer only limited intellectual property protection. More protection may be obtained through the 1994-amended Plant Variety Protection Act, which allows the breeder to control the commercial rights associated with a new variety for 20 years. Third parties can use the protected variety for research without infringement and grower-customers can save seed harvested from the protected variety for use on their own farm. Another form of intellectual property protection is utility patents. These patents allow the inventor to control both research and commercial uses of the invention as well as all forms of production and sales for 20 years. In addition, a special form of protection, a plant patent, may be obtained for asexually reproducing plants to protect against the unauthorized asexual reproduction of the protected variety for 20 years. Plant patents should not be confused with utility patents containing claims for plants.

What are the advantages and disadvantages of the different types of IP protection?

Trade secrets can be powerful if the invention is not easily discoverable since they can last forever. However, if the invention is never disclosed, the public can never access it. The other forms of intellectual property rights protection guarantee that an invention ends up in the hands of the public in exchange for a limited period of exclusivity. This allows the inventor to obtain a return on the investment, encouraging further private research and development. Under a strong intellectual property rights system, a balance is struck between rewarding the innovator and giving the public access to new product or technology. Moreover, utility patents for plants and plant patents provide a mechanism to enforce resistance management practices and other forms of environmental stewardship through licensing agreements.

Who determines what type of intellectual property protection is required?

In the United States, intellectual property protection, enforcement, and licensing for any invention is at the sole discretion of the inventor. The type of protection selected is generally directly related to the nature of the invention and perceived level of risk in the marketplace. For example, not all inventions related to plants meet the rigorous standards of utility patent laws, but they may meet the less restrictive requirements of Plant Variety Protection. Innovations are the private property of the inventor. ASTA believes that US seed companies have the right to protect their property to the fullest extent possible in order to make a return on their investments in research and development.

Can the public sector access patented seeds?

Yes. Protection of intellectual property through utility patents and plant variety protection always puts the protected invention in the public domain since both are of limited duration. The public’s benefit for an exclusive period of protection for the inventor is public availability of the invention at the expiration of that period. To ensure that, seed deposits, or small samples, must be given to seed banks, which preserve the seed for public use upon expiration of protection. Samples from these deposits become available, subject to the rights of the patent owner, when the patent is granted and in some cases, even earlier. Compared to former practices, where new varieties could be held as trade secrets indefinitely and never disclosed to the public, the deposits made to obtain utility patents allow access to elite genetic pools not previously available.

Do intellectual property rights only benefit large companies with deep pockets?

No. Intellectual property protection works for everyone for many purposes, not just for commercial companies making profits. Universities have an opportunity to benefit from their innovations by controlling the manner in which they are used and the terms under which they are made available through the Plant Variety Protection Act or patents. Since a fundamental mandate of all universities is to publish the results of their work, they cannot rely on trade secrets. Small companies and countries may also benefit from protection in licensing to larger companies and countries.

Why is it important for developing countries to adopt intellectual property laws?

Developing nations need to establish and enforce intellectual property laws to improve the viability of their research and development activities and to gain access to innovations from other countries. Clearly, companies and universities spending money on seed research and development need to justify those expenses by being financially rewarded for their efforts. Hence, companies and universities are unwilling to go to the expense of transferring new technologies to countries that lack intellectual property protection. The result is that these countries tend to be denied access to much-needed new crop varieties and technologies. It is estimated that 80 percent of seed in developing countries is farmer-saved or supplied by the government, which provides limited numbers of old seed varieties and outdated technology.

What are the risks of selling patented seed in countries that lack patent protection?

Black markets for patented seed may be created in countries lacking patent protection, resulting in unfair pricing differentials. Theft of new seeds and technologies can result in millions of dollars of lost revenue to investors, which discourages further investment. In addition, if countries allow mandatory licensing of intellectual property, its worth is devalued, thereby, decreasing future investment in seed research and development. Mandatory licensing allows those who did not contribute to the research to benefit from the successful projects without bearing the costs of any unsuccessful projects.

What is ASTA’s position on mandatory licensing?

ASTA believes that inventors should be able to determine whether or not to license their innovations. Mandatory or compulsory licensing of intellectual property to companies or individuals not involved in the research devalues the worth of the innovation, thereby, discouraging further investment in seed research and development.

What is ASTA doing to advance intellectual property rights protection?

ASTA is working with its members, farm groups, and international governments to advocate the establishment and enforcement of intellectual property laws worldwide. It participates in Congressional hearings on the topic and provides written comments on related policy matters.

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