Expert response from Professor Drew Kershen
Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law
Thursday, 25/07/2013 14:27
The simple answer to the question is yes. But the simple answer does not adequately provide an explanation or an understanding of the question. To achieve an explanation and understanding, it is helpful to rephrase the question: Does “intellectual property” allow a private company to own the seed created?
Beginning in the early 1900s, scientists began to understand the process of developing hybrid plants. Scientists learned to develop two inbred parent lines that, when crossed, produced hybrid vigo―most often meaning greatly increased yields. Using this scientific knowledge, Henry Wallace, of Pioneer Hi-Bred, controlled the information about the parental lines as a company secret, thereby gaining the intellectual property known as a “trade secret.” Thus, seed companies have been able to have trade secrets in plants for almost a century in the United States.
Farmers would go to a local seed dealer and request to purchase a particular brand and variety of a seed. Upon purchase, the farmers would then own the seed for planting and harvesting a crop. However, because of ordinary rules of biology, hybrid seeds, if saved and replanted, lose about 30 percent of their yield. Thus, farmers in the United States are accustomed to returning to a local seed dealer each year to purchase new hybrid seeds. The same is true for farmers around the world.
As knowledge about plants and breeding continued to develop, scientists learned in the early 1970s to use new breeding techniques based on knowledge of genetic information. In 1980, the Supreme Court of the United States ruled that an organism produced through modern biotechnology can be protected under general patent law―via a utility patent. In 2013, the Supreme Court of the United States reaffirmed that plant breeders can obtain a utility patent in biotech organisms, including seeds and plants. (Association for Molecular Pathology v. Myriad Genetics, Inc., # 12-398, decided June 13, 2013).
Therefore, in the United States, plant breeders can own intellectual property in seeds and plants through each of the legally protected property rights: plant patents, trade secrets, trademarks, plant variety certificates and utility patents. Farmers purchase seeds from local seed dealers, and farmers then own the seeds for the purposes of producing a harvest. But the farmer does not own the intellectual property in the seed or growing crop.
Distinguishing between the physical seed and plants and the intellectual property in the seed and plants means that the farmer can grow the seed for a harvest but cannot, in most instances, save the harvested seed for the purpose of growing another crop.
This is no different from a person who purchases a movie DVD. The person owns the movie DVD but does not own the intellectual property in the DVD. Consequently, the person cannot legally make a copy of the movie DVD.
After reading this far, a person might ask, “Why does the United States law recognize these various forms of intellectual property?” U.S. law creates and supports intellectual property because intellectual property provides the incentive for innovation by allowing the inventor an IPR (legally protected property right). Using the IPR, the inventor can recover the research and development costs that went into inventing the new, useful innovation. Seed companies spend years (about 13 years on average) and millions of dollars per new seed variety to produce a new, useful seed variety.
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