Claire Luby, Department of Horticulture, University of Wisconsin-Madison
A. Bryan Endres, Department of Agriculture and Consumer Economics, University of Illinois
Michelle Wander, Department of Natural Resources and Environmental Sciences, University of Illinois
Carmen Ugarte, Department of Natural Resources and Environmental Sciences, University of Illinois
Improving our agricultural crops through plant breeding inherently relies on the continuous exchange of plant genetic diversity to improve yields, agronomic performance, nutrition and flavor. For millennia, farmers would save seed of the best individuals of their crops to gradually domesticate and improve plants for food, fiber, and fuels. Plant breeding as a scientific discipline did not evolve until the early 1900’s as part of the Land Grant University system. Over the course of the twentieth century, seed went from being viewed as a freely exchanged public good, toward increasingly considered a product of human invention that is owned and protected (Kloppenburg, 2004). These trends have impacts on the exchange of plant germplasm amongst plant breeders and what farmers can and cannot do with their seeds and harvest (Luby et al., 2015).
Recognizing the importance of plant diversity to the nation’s economic development, in 1819, the Treasury Department ordered consular and navy officials to collect foreign germplasm for propagation in the United States. In the 1840s, the Patent and Trademark Office, through its Division of Agriculture, began the free distribution of seeds to farmers. High performing seeds were saved and traded among neighbors and although the actual seeds were subject to ownership as personal property, the famer-discoverer of any mutation or new variety did not regard him- or her-self as the owner of the new variety’s germplasm (Endres, 2004).
Even though few U.S. farmers save their seeds today, plant breeding continues to rely on selection of top performing individuals from within a diverse population in an environment similar to the farm where the end cultivar will be grown. Much plant breeding research and development efforts have been invested in selecting new cultivars under high input (i.e.: synthetic fertilizers and pesticides) field conditions. This has led to dramatic advances in yields for farmers practicing these methods over the past half century. However, as the organic agricultural sector grows, it will be critical for plant breeders to develop new, high performing cultivars that meet the diverse needs and environments of organic farms. While more organic farmers are beginning to use organically produced seed, wherein the seed increase phase of the breeding cycle is done using organic techniques, they are rarely using cultivars that were selected for the specific needs of organic systems (Hubbard and Zystro, 2016).
Access to seed genetics is now influenced by intellectual property rights (IPRs) rather than sharing networks; and, IPRs of various kinds are now the norm both in the private and public sectors (Luby and Goldman, 2016). While IPRs on plant varieties can be helpful for recouping investment on the plant breeding process, they can affect plant breeders’ and farmers’ freedom to operate with varieties in several ways (Luby et al., 2015). Sections that follow explain how IPRs influence where plant breeding happens, provide a brief history of the evolution of IPRs over plant varieties, and describe the dominant types of IPRs and release mechanisms. We recognize that this system is complex and that this is only intended to skim the surface of these issues, primarily in the United States.
Where does Plant Breeding happen?
Today, plant breeding happens in a variety of institutions and ad-hoc environments. Often, where plant breeding happens determines how a cultivar is ultimately released to the public and any resulting intellectual property-based restrictions on use.
Land Grant Universities: The land grant universities (LGUs) were established by the Morrill Act in 1862 with the mission of developing universities that serve agriculture and mechanical fields. There are still many plant breeders working at land grant institutions where part of their job is to release new varieties and to maintain applied plant breeding programs. However, these types of applied plant breeding positions have been in decline (Shelton and Tracy, 2017). Historically, cultivars developed at LGUs were released into the public domain. However, the Bayh-Dole Act of 1980 required that any invention (including plant cultivars) developed using federal dollars be released through the university’s technology transfer office. Thus, university-developed cultivars are sometimes now released with many of the same types of IPR as private companies in order to generate royalty revenue for the sponsoring university. Unfortunately, at many universities, much of that revenue does not go back to support plant breeding activities, but provides general funds for operations. (Shelton and Tracy, 2017; Tracy et al., 2017).
Government/ USDA: The United States Department of Agriculture employs many plant breeders located at land grant universities and research stations around the country. These plant breeders maintain active breeding programs for their specified crops and release new inbred lines and cultivars. USDA plant breeders release new cultivars through the ARS Office of Technology Transfer, with the goal to maximize societal value, rather than revenue. This can result in cultivars being released into the public domain with no forms of IPR, or can result in a cultivar being released with some type of IPR.
Seed Companies: Many seed companies have internal plant breeding programs. Research and development departments vary substantially depending on the crop and the size of the company. Cultivars released from these largest programs generally are proprietary in some way, ranging from hybrid cultivar releases with inbred lines protected by trade secrets to multiple utility patent claims on a single genetically engineered cultivar. Accompanying contract/license terms provide additional layers of protection against seed saving or further plant breeding. In the organic seed sector specifically, many smaller seed companies serving this market do release new varieties directly into the public domain without patents or plant variety protection (PVPs), and many release new varieties using the Open Source Seed Initiative Pledge.
Freelance/Independent Plant Breeders: Freelance plant breeders are people doing plant breeding outside of an institutional context (Montenegro DeWit, 2017). It is difficult to define this group of plant breeders; however, this group usually generates at least some or all of their livelihood through their plant breeding work. Some of them have started seed companies in order to sell their cultivars, some are seed growers who also do some plant breeding and sell their seed varieties wholesale. Generally, they are breeding for growing conditions, regions or practices (such as low input or organic) that are not necessarily served by the larger seed companies. They tend to release their cultivars without formal IPR agreements, generally into the public domain, often through the Open Source Seed Initiative, or as hybrids, while maintaining trade secrets on inbred lines.
Farmer Plant Breeders: Farmer plant breeders are farmers who also do some plant breeding on their farm. While similar to freelance plant breeders in that they are not affiliated with an institution that supports their breeding work, farmer-breeders usually are not as directly involved in the seed industry as their freelance colleagues. Often, they are partnering with a plant breeder in another institution, such as the Organic Seed Alliance or a university. Sometimes their varieties are ‘picked up’ and sold by seed companies or the farmer grows seed of the new cultivar for their own on-farm use.
Non-Government Organizations (NGOs): NGOs, such as the 15 global CGIAR centers (formerly the Consultative Group for International Agricultural Research), engage in substantial plant breeding efforts. These are research centers that focus on a few specific crops and have active plant breeding and research programs aimed at releasing cultivars useful to farmers in the global south. Formerly, CGIAR released its cultivars into the public domain with no fees associated, but in recent years there has been more effort on ensuring that communities that have contributed to selecting and maintaining seed over generations receive some kind of benefit sharing. CGIAR currently releases cultivars and populations with a standard material transfer agreement (SMTA). The fact that this agreement requires tracking the genetics and paying royalties for many following generations has proved challenging to track in a practical sense.
In addition to the international NGO’s, there are local and national NGO’s that engage in farmer-participatory plant breeding such as Mandaman Institute, the Louis Bolk Institute (Netherlands), Organic Seed Alliance, the Northern Plains Sustainable Agriculture Society Farmer Breeder Club, and the Bauta Initiative on Canadian Seed Security.
Evolution of Intellectual Property Rights over Plant Varieties
Historically, all plants were part of the public domain, or the commons. Public domain means that there are no IPRs or any other type of protection on a cultivar. Public domain cultivars are free to use in any way, however, any derivatives (or something new bred from that cultivar) subsequently could be protected with IPRs, thereby potentially closing off the new variety from free public use.
In 1930, Congress passed the Plant Patent Act (PPA)—the first in a series of statutes granting IPRs on living material. The PPA prohibited the asexual reproduction of patented plants without a license from the holder. The PPA did not provide intellectual property protection for seeds. The 1970 Plant Variety Protection Act (PVP) extended IPRs to seeds, while still allowing farmers to save seeds for their own use and plant breeders to use the material in crosses to develop new cultivars. A 1980 U.S. Supreme Court case, Diamond v. Chakrabarty, upheld the patentability of living inventions—in this case a genetically engineered micro-organism, and allowed traits and plant varieties to be utility patented. Five year later, in 1985, the Board of Patent Appeals upheld the patentability of maize seeds, thereby opening the door to utility patent applications for all new, non-naturally occurring plants. Moreover, in 2001, the Supreme Court ruled that plants could be protected simultaneously by utility patents and PVP or PPA restrictions (Endres, 2004).
Types of Intellectual Property Rights on Plant Cultivars
Trade secret: A trade secret is protected or exclusively held information used by many industries. Trade secrets consist of customer lists to production processes. For plants, trade secrets most often take the form of inbred lines used to make an F1 hybrid cultivar. While there may be no additional protection on the actual F1 hybrid itself, the inbred lines and combinations of inbred lines used to make an F1 hybrid, are often fiercely protected by companies as trade secrets. Even though someone could save seed of an F1 hybrid, or try to re-create the inbred parent lines, it is unlikely they would ever get the exact same thing. Moreover, trade secrets have their own legal protections to prevent unauthorized misappropriation (Endres & Goldsmith, 2007).
Open Source: Open Source describes a new way of releasing a cultivar or population. Open source utilizes ideas developed by the free and open source software community. In the U.S., the Open Source Seed Initiative (osseeds.org) maintains a database and registration for open source cultivars, and partners with plant breeders and seed companies to release new cultivars under the Open Source Pledge, which reads: “You have the freedom to use these Open Source Seed Initiative - Pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives.” The only restriction placed on open source cultivars is that there be no further restrictions on the cultivar or its derivatives (Luby et al. 2015, Luby and Goldman 2016).
Plant Variety Protection Act (PVPA): The PVPA was passed in 1970, and amended in 1994, provides a plant variety protection certificate for sexually reproducing crops through the USDA’s Plant Variety Protection Office. In order to receive a certificate, the plant breeder must prove that the cultivar is new, distinct, uniform and stable. A certificate grants the holder 17 years of protection over the cultivar and allows the holder to determine who is able to sell seed of the cultivar and to collect royalties on that cultivar. After the expiration of the PVP certificate, the cultivar enters the public domain. There are exemptions to PVP protections that allow the cultivar to be used in plant breeding and for farmers to save seed for their own use, but not resell the saved seed to third parties (Endres & Goldsmith 2007).
Plant Patents: Plant Patents result from the Plant Patent Act, passed in 1930. It allows plant breeders to asexually reproduce crops and to apply for plant patents through the U.S. Patent and Trademark Office. A plant patent is a 20-year protection that allows the holder to charge royalties on propagation or sale of the cultivar.
Utility Patents: Utility Patents are patents originally intended for non-biological inventions that, have been granted for plant cultivars and other biological inventions since the mid-1980s and, thus coincide with the rise of biotechnology in the seed industry. Utility patents are available through the U.S. Patent and Trademark Office for inventions that are novel, non-obvious, and useful. A patent, depending on the specific claims, can allows the holder to exclude others from using the cultivar in any way (i.e.: selling, plant breeding, research etc.) without a license for a period of 20 years.
Trademarks: Trademarks can only be used in very specific ways in conjunction with plant cultivars. It is not possible to receive a trademark on a cultivar per se; but, it is possible to use trademarks in association with sales of seed or propagules of a specific cultivar. Club apple cultivars, such as ‘Pink Lady’, are an example of the use of trademarks in plant commerce. In these situations, a grower must be “in the club” to be able to sell their apples under the trademarked name, ‘Pink Lady’. The actual cultivar name of the tree that a ‘Pink Lady’ apple comes from is ‘Cripp’s Pink’. Registered trademarks are protected under both federal and state law.
Contract Law: Contract Law refers to any agreement between two or more parties, and is used in a myriad of ways within the seed industry. Contract law can take the form of a material transfer agreement which might outline what kinds of practices are allowed on the seed it is attached to. Other forms of contracts include any documents signed by a farmer when purchasing seed that outlines what they are allowed to do with the seed. These contracts tend to be quite restrictive. More recently, contract rules can also apply in the form of a ‘bag tag’ attached to a seed packet or bag that outlines what can and cannot be done with that seed. Opening of the seed packet -- similar to opening or downloading software -- serves as the equivalent of signing a formal agreement. Contract law, especially when combined with underlying IPRs such as utility patents or PVP certifications, can form powerful restrictions on farmers’ and breeders’ freedom to experiment and develop new varieties. However, there is also movement towards using contract law in a way that is fair and doesn’t restrict the farmer from saving seed or a breeder from using seed in further research or breeding, while still returning royalties back to breeding programs and/or farm partners.
As the plant breeding landscape has shifted over the past century, so too has the way in which plant varieties are owned and protected with intellectual property rights. While this has benefitted some companies and farmers, it has also led to a consolidated seed industry and one that does not necessarily serve the needs of all types of farmers. The organic sector is currently seeing tremendous growth, and developing new varieties that perform well in these growing environments is an important consideration for plant breeders. Support of a robust seed supply for this sector will also require stakeholders to develop new ways of approaching plant breeding to serve diverse and decentralized farming systems such as participatory networks that include plant breeders, farmers and end users. In addition, breeders and their partners in varietal development and selection will need to consider the appropriate type of intellectual property restrictions for varieties developed with multiple people and institutions to ensure that the genetics in these varieties remain available for continued improvement.
References and Citations
- Endres, A.B. 2004. State Authorized Seed Saving: Political Pressures and Constitutional Restraints. Drake Journal of Agricultural Law 9: 323-357.
- Endres, A.B. and P.D. Goldsmith. 2007. Alternative Business Strategies in Weak Intellectual Property Environments: A Law and Economics Analysis of the Agro-Biotechnology Firm’s Strategic Dilemma. Journal of Intellectual Property Law 14 (2): 237-268. (Available online at: https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1308&context=jipl) (verified 27 November 2018).
- Hubbard, K, and J. Zystro. 2016. State of Organic Seed [Online]. Organic Seed Alliance. Available at: https://stateoforganicseed.org/ (verified 26 September 2018)
- Kloppenburg J. 2004. First the seed: The political economy of plant biotechnology, 1492–2000. Reissued with a new preface and an additional final chapter, ‘Still the Seed’. University of Wisconsin Press, Madison, WI.
- Luby, C.H., and I.L. Goldman. 2016. Freeing Crop Genetics through the Open Source Seed Initiative. PLOS Biology 14(4). (Available online at: https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.1002441) (verified 27 November 2018).
- Luby, C.H., J. Kloppenburg, T.M. Michaels, and I.L. Goldman. 2015. Enhancing freedom to operate for plant breeders and farmers through open source plant breeding. Crop Science 55 (3):2481-2488. (Available online at: https://dl.sciencesocieties.org/publications/cs/pdfs/55/6/2481) (verified 27 November 2018).
- Montenegro DeWit, M. 2017. Beating the bounds: how does ‘open source’ become a seed commons? Journal of Peasant Studies. (Available online at: https://doi.org/10.1080/03066150.2017.1383395) (verified 26 September 26 2018)
- Shelton, A.C., W.F. Tracy. 2017. Cultivar Development in the U.S. Public Sector. Crop Science 57: 1823-1835. (Available online at https://dl.sciencesocieties.org/publications/cs/pdfs/57/4/1823) (verified 27 November 2018).
- Tracy, W.F., J.C. Dawson, V.M. Moore, J. Fisch (eds). 2016. Intellectual Property Rights and Public Plant Breeding Recommendations, and proceedings of a conference on best practices for intellectual property protection of publicly developed plant germplasm. Raleigh, North Carolina. 12-13, August 2016. (Available online at: https://agronomy.wisc.edu/wp-content/uploads/sites/147/2018/05/Proceedings-IPR-Final.pdf) (verified 27 November 2018)