Jim Myers, Oregon State University
This is an Organic Seed Resource Guide article.
Some plant varieties are protected as “intellectual property” through various types of patents, and their use or propagation may be restricted by the patent owner. Such restrictions determine whether you can propagate the variety for your own use or to sell commercially, or may affect your ability to make crosses with the patented variety. Varieties not under such protection are held in the public domain and may be used and propagated without restrictions. Generally, older varieties including land race and heirloom varieties fall into this category, although some modern varieties are released without restrictions.
Vegetatively propagated plants can be protected with a plant patent. Plant patents are regulated by the U.S. Patent and Trademark Office.The patent holder has the “right to exclude” (without permission) others from reproducing the protected material for a period of 20 years. Plant patents are used primarily for perennial fruits and ornamentals that are propagated from cuttings or by tubers (excluding potato and other vegetables). Seed-propagated plant varieties may be protected by plant variety protection (PVP) certificates and utility patents. Potato and other tuberous vegetable species may be protected through this mechanism as well. PVP certificates are issued by the USDA Plant Variety Protection Office, and utility patents are issued by the U.S. Patent and Trademark Office.
Field of Hybrid Redbor Kale at Nash's Produce, Sequim, WA. Photo credit: Micaela Colley, Organic Seed Alliance
The Plant Variety Protection Act of 1970 established PVP certificates to protect the interest of breeders of “sexually reproduced” plants, that is, plants grown from seeds. The act has been updated twice and in its present form, it allows the developer of a new variety to exclude others from reproducing and selling the protected variety without permission. Varieties are protected for 20 years.
Pure lines, open-pollinated populations, inbreds used to make hybrids, F1 hybrids, and clones (in the case of potatoes) can be plant variety protected. The variety must meet standards of distinctiveness, uniformity, and stability, and must be substantially different (cannot be essentially derived) from other plant variety protected varieties. The PVP act allows two exemptions to the owner’s exclusive control of a variety. These are the researcher’s and the farmer’s exemption.The researcher’s exemption allows others to conduct research with the variety, including using the protected variety in crosses to create a new variety. The farmers’ exemption allows farmers to save seed from their crop for their own use, including further propagation. The USDA Plant Variety Protection Office maintains a database of varieties and their status (PVP applied for, abandoned, issued or expired). The site has links to the application documents in some cases. For varieties where PVP certificates have been issued, but no documents are posted to the web, photocopies can be obtained for a fee from the PVP office. The database also links PVP applications to the USDA National Plant Germplasm System (NPGS) Germplasm Resource Information Network (GRIN), which holds the official seed samples of PVPed varieties.During the 20 years that a PVP certificate is in effect, the seed in NPGS can only be obtained by the owner. After the certificate has expired, the seed becomes available to the public and can be requested through the GRIN system.
Recent court decisions in the United States have expanded the scope of traditional utility patents to cover living organisms, including plants, plant parts, and plant-breeding processes. To be granted a utility patent, the variety, trait, or procedure must be novel, useful, and non-obvious to one skilled in the art of plant breeding.
The utility patent holder can exclude others from propagating, growing, using, or selling the protected material, without permission, for 17 to 20 years. There is no researcher’s or farmers’ exemption, so protected material cannot be used without permission in a breeding program or be saved for personal use by farmers.
The larger seed companies are using utility patents to protect pure lines, inbreds used to make hybrids, F1 hybrids, and traits in general. Some recently granted trait patents are very broad in that they claim all varieties that possess the trait in question.
In all but a few cases, all contemporary varieties developed by private breeders are protected, and most public varieties are protected as well. There are several ways to determine whether a variety is protected by a patent and, if so, when that protection ends. The original seed container may have a tag indicating that the variety is protected, or the catalog description may indicate its status. Also, you can check with the originating seed company or search the patent databases.
When you ask for noncommercial material from a plant breeder or germplasm bank, you may be asked to sign a Material Transfer Agreement (MTA). The MTA may restrict what you may do with the material. Common restrictions are that the material may be used only for trialing purposes, or that you cannot distribute the material to a third party. Nearly all public and private plant breeders use MTAs to distribute their material.
At the international level, The International Treaty on Plant Genetic Resources for Food and Agriculture now governs the ownership and control of seed. If you request germplasm from an international agricultural research center, you will have to sign what is known as the standard MTA (SMTA). This agreement allows you to use the germplasm commercially, or to develop improved varieties for sale, but requires that a percentage of the profits be returned to the country from which the germplasm originated.
This is an eOrganic article and was reviewed for compliance with National Organic Program regulations by members of the eOrganic community. Always check with your organic certification agency before adopting new practices or using new materials. For more information, refer to eOrganic's articles on organic certification.