Biotechnology Intellectual Property Law

At first it makes everyone’s hair hurt, works like infringement, appeal, settlement and so on. Pages and pages of reports and analyses have been written by law students trying to make sense of it all. In reality the basic mechanics of patent law aren’t that complicated, but when two parties clash, the technicalities become very important and case-determining.

Patents were established in Article 1, Section 8 of the US Constitution to protect inventions so that the inventor could make a profit. This was to support innovation and help the inventor keep inventing. It wasn’t until 1930 that plants and seeds were considered patentable material since they were from nature herself and didn’t really fit into the framework of patents at the time. In 1930, the US Plant Patent Act allowed property rights for intentionally developed varieties. Living things were only allowed to be patented if they were useful and novel. At first this was only for asexually reproducing seeds and then was pushed to sexually reproducing seeds in the 1950s. In 1970 the Plant Variety Protection Act was passed which provided protection for seed germination in plants as well but limited for research and seed saving by farmers. It wasn’t until 1980 when the legal commodification of germplasm was allowed. Essentially, it was a broad interpretation of the law, but because it was intentional, man-made, and novel it passed.

Infringement cases have been much more prevalent since, not due to the law but the license sold along with the seed. Since seed is reproducible, any farmer that saves seed is a direct competitor of a company that manufactures seeds.  If the seed is patented, seed saving can be prohibited. By signing a technology agreement a farmer agrees that they will only use the seed for a one time planting, not supply to seed to anyone else for planting, not save any crop produced from the seed for replanting, and not use the seed or provide it to anyone for crop breeding, research, or seed production. So what happens if a farmer who did not sign a technology agreement finds patented traits in his or her crops? The general route is to test for commercial significance. This means that the company gets to see if the person infringing can actually make any profit off of the ‘stolen goods’. In almost all cases they can’t if it is true contamination, but in cases where someone claimed that it came from their neighbor or a passing truck the levels of ‘property’ found in the fields were so high they had to be intentional.

According to Monsanto’s website, the majority of infringement cases are reported by other farmers. This is because it’s not fair for some farmers to honor their agreements and others to not, and essentially mooch off the system. Most of the infringement cases are settled out of court by admitting the violation and paying a settlement. The few that do go to court are publicized and taken out of context. The truth is growers who buy Monsanto seed have to sign a technology license or agreement, which is a legally binding contract. Any violation of that contract can easily be taken to court.  This aspect of the law takes the fire and brimstone out of the wild injustices of ‘BigAg’.

References

Blakeney, M., Cohen, J. I., & Crespi, S. (1999). Intellectual Property Rights and Agricultural Biotechnology.

Brody, B. a. (2010). Intellectual property, state sovereignty, and biotechnology. Kennedy Institute of Ethics Journal, 20(1), 51–73. Retrieved from http://www.ncbi.nlm.nih.gov/pubmed/20506694

Charles, D. A. N. (2012). Top Five Myths Of Genetically Modified Seeds, Busted. NPR.

Condon, B. J. (2013). Climate Change and Intellectual Property Rights for New Plant Varieties. Journal of World Trade, 47(4), 897–924.

Consequences of Inellectual Property Rights on Farmer Seed Systems in Developing Countries. (2002). In Conservation and Sustainable Use of Agricultural Biodiversity (pp. 522–527). Syngenta.

Donnenwirth, J., Grace, J., Smith, S., & Collis, J. S. (2004). Intellectual Property Rights , Patents , Plant Variety Protection and Contracts : A Perspective from the Private Sector, (9), 19–34.

Hayden, E. C. (2011, September 29). “Patent trolls” target biotechnology firms. Nature, 477(7366), 521. doi:10.1038/477521a

Intellectual Property Rights: Ultimate Control of Agricultural R&D in Asia. (2001) (Vol. 7, pp. 1–27).

Kesan, J. P., & Gallo, A. A. (2005). Property Rights and Incentives to Invest in Seed Varieties : Governmental Regulations in Argentina. AgBioForum, 8(2&3), 118–126.

Ledford, H. (2013). Seed-patent case in Supreme Court. Nature, 8–10.

McEowen, R. A. (2014). Developments in GMO Patent Infringement Cases. Agricultural Marketing Resource Center.

Moss, D. L. (2013). Competition, Intellectual Property Rights, and Transgenic Seed. South Dakota Law Review.

Price, N. (2013). Monsanto v . Bowman : Patents on GMO Seeds. Harvard Law Blog: Bill of Health.

Rinehart, G. (1997). Saved Seed and Farmer Lawsuits. Monsanto FAQ.

Stein, H. (2005). Intellectual Property and Genetically Modified Seeds : The United States , Trade , and the Developing World Intellectual Property and Genetically Modified Seeds : The United States , Trade , and the Developing World. Northwestern Journal of Technology and Intellectual Property, 3(2), 160–178.

Trommetter, M. (2009). Flexibility in the implementation of intellectual property rights in agricultural biotechnology. European Journal of Law and Economics, 30(3), 223–245. doi:10.1007/s10657-009-9133-7

Why Does Monsanto Sue Farmers Who Save Seeds ? (1997). Monsanto FAQ.

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