Patented seed technologies are in part responsible for the vast increase in U.S. farm productivity over the past several decades. Indeed, the vast majority of all corn, soybean, and cotton seed grown in the U.S. today were developed through the use of either plant breeding methods, genetic engineering, or both. The seed industry is now worth more than $25 billion worldwide. Major seed companies include Pioneer Hi-Bred (a subsidiary of DuPont), Monsanto, and Syngenta, among others.
The increasing value of proprietary seed technologies has spawned renewed interest in intellectual property (IP) rights relating to new plant varieties. Numerous IP rights are available to inventors of new plants. Asexually reproducing plant varieties such as roses, fruit trees, and grapevines are protectable by plant patents. Plants that reproduce by flowering and production of seeds may be protected by Plant Variety Protection (PVP) Certificates and by utility patents.
Seeds protected by PVP Certificates may be used by third parties in breeding as there is a research exemption for PVP Certificates. In contrast, third parties require a license to use seeds protected by utility patents as no research exemption exists for utility patents.
Plant Variety Certificates cover varieties that are indistinguishable from the protected variety and varieties essentially derived from the protected variety. Broader plant intellectual property rights are available via utility patents.
A utility patent can protect the variety itself and the trait embodied by the variety. Utility patent rights are also available for transgenic traits developed through recombinant DNA techniques, when they are successfully applied to plants. Issues pertaining to this latter class of rights have broader implications for the biotechnology industry, as demonstrated by Bowman.