how can the patent holders for Gmo seeds claim perpetual ownership of the product

Specifically if i buy a gmo seed it flowers, fruits gives me seeds which i then proceed to plant
However by that action im supposedly committing theft is the common understanding, so the question is when a gmo seed is sold is the seed being sold or is it some limited lease to use the product?

Expert response from Professor Drew Kershen

Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law

Tuesday, 23/09/2014 23:48

I think it helps to understand the answers to the questions by answering the second question first.

When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops.

You go to a bookstore and purchase a book.

• The book physically is an item of personal property that you own. You can read the book, sell it to someone else, give it away, make it part of your estate or destroy it. The physical book is your personal property.
• But the contents of the book — i.e., the fictional story or the history told, including its layout and typeface — are the intellectual property of the copyright holder, usually the publishing company that is paying the author royalties. You do not own that intellectual content. Under copyright law, you cannot make another copy of the book through any method of reproduction. Books do not grow in the ground, but if a book did, you could not grow it, because that would be making a copy of the book.

Now, back to your question specifically, when you buy a seed containing intellectual property based on a patent, you own the seed physically, but you do not own the intellectual property embodied in the seed. You can sell the seed as a harvest for food, feed or fiber; you can use the harvested seed for personal consumption; or you can give the harvested seed to another for the other’s personal consumption. But you, or the person to whom you sold or gave the harvested seed, cannot reproduce the seed to create a second harvest.

When you purchased the seed, your purchased the seed subject to honoring the embodied intellectual property rights — that is, in this instance, a patent. You have a license to use that patent in accordance with the terms of the license, paying a price for that authorized use as part of the purchase price of the seed. With respect to seeds embodying patents, you cannot use saved seeds for the purpose of further reproduction of seeds.

Let me clarify at this point that seeds embodying patents can be organic, conventional or genetically modified seeds. In other words, the patent law applies to seeds regardless of how the inventor of the seed developed the seed. So long as the inventor can satisfy the statutory requirements for obtaining a patent and applied for a patent, the inventor can gain a patent for the seeds. Seeds of all types, not just GM seeds, can have embodied intellectual property rights.

I will now return to the first question.

Patent holders claim their patent rights in seeds covered by a patent for the term of the patent — 20 years is the term of a patent in the United States. Patent holders do not have a “perpetual” right; patent holders have a “term-limited” right for the term of the patent.

Patent holders do not own the seed itself; patent holders have property claims to the patent embodied in the seed.

Thus, when you purchase a seed covered by a patent, there are two owners involved with the seed: you own the personal property component, and the patent holder owns the patent rights in the seed.

Your questions asked straightforwardly about the property rights found in purchased seed. Your questions did not ask why the law developed intellectual property rights or what justifies intellectual property rights. I have previously answered questions that asked “why” and “what justifies.” You may be interested in those previously answered questions.    

Expert response from Professor Drew Kershen

Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law

Tuesday, 23/09/2014 23:48

I think it helps to understand the answers to the questions by answering the second question first.

When a person buys a product for which someone holds intellectual property rights, it is helpful to think of the product as having two distinct property components: the personal property of the item itself and the intellectual property embodied in the item. Let me give you an example that does not involve genetically modified crops.

You go to a bookstore and purchase a book.

• The book physically is an item of personal property that you own. You can read the book, sell it to someone else, give it away, make it part of your estate or destroy it. The physical book is your personal property.
• But the contents of the book — i.e., the fictional story or the history told, including its layout and typeface — are the intellectual property of the copyright holder, usually the publishing company that is paying the author royalties. You do not own that intellectual content. Under copyright law, you cannot make another copy of the book through any method of reproduction. Books do not grow in the ground, but if a book did, you could not grow it, because that would be making a copy of the book.

Now, back to your question specifically, when you buy a seed containing intellectual property based on a patent, you own the seed physically, but you do not own the intellectual property embodied in the seed. You can sell the seed as a harvest for food, feed or fiber; you can use the harvested seed for personal consumption; or you can give the harvested seed to another for the other’s personal consumption. But you, or the person to whom you sold or gave the harvested seed, cannot reproduce the seed to create a second harvest.

When you purchased the seed, your purchased the seed subject to honoring the embodied intellectual property rights — that is, in this instance, a patent. You have a license to use that patent in accordance with the terms of the license, paying a price for that authorized use as part of the purchase price of the seed. With respect to seeds embodying patents, you cannot use saved seeds for the purpose of further reproduction of seeds.

Let me clarify at this point that seeds embodying patents can be organic, conventional or genetically modified seeds. In other words, the patent law applies to seeds regardless of how the inventor of the seed developed the seed. So long as the inventor can satisfy the statutory requirements for obtaining a patent and applied for a patent, the inventor can gain a patent for the seeds. Seeds of all types, not just GM seeds, can have embodied intellectual property rights.

I will now return to the first question.

Patent holders claim their patent rights in seeds covered by a patent for the term of the patent — 20 years is the term of a patent in the United States. Patent holders do not have a “perpetual” right; patent holders have a “term-limited” right for the term of the patent.

Patent holders do not own the seed itself; patent holders have property claims to the patent embodied in the seed.

Thus, when you purchase a seed covered by a patent, there are two owners involved with the seed: you own the personal property component, and the patent holder owns the patent rights in the seed.

Your questions asked straightforwardly about the property rights found in purchased seed. Your questions did not ask why the law developed intellectual property rights or what justifies intellectual property rights. I have previously answered questions that asked “why” and “what justifies.” You may be interested in those previously answered questions.