Chapter 12 - Protection of Proprietary Plant Germplasm

Abstract

The notion that sexual seeds or asexual propagules and the hereditary material within them are subject to human ownership is an ancient one. As human tribes began to trade, seeds of unique plant and animal selections were one of the most valuable barters. Ownership of plant germplasm was an implied trade secret until legislation was drafted during the 20th century aimed at enhancing production development activities. The platforms that are currently available for proprietary protection of plant germplasm are a trade secret, trademark or copyright, plant variety protection (PVP) certification, plant patent, and utility patent. The justice systems of most nations will hear cases that involve all of these forms of protection. The most widely used forms of protection are trade secret, PVP, and plant patents. Each form of protection has advantages and disadvantages, and no single strategy is preferable in all situations. Trademarks and copyrights have minimal utility in the protection of plant genes and germplasm from piracy. Until recently, trade secrets in the world of plant breeding invention were considered a relatively weak strategy for proprietary protection. With the advent of genomics and QTL mapping, plant breeders can easily and affirmatively identify novel populations and individuals. After finished populations are released as cultivars, the need for further means of proprietary protection becomes more critical. The Plant Patent Act (PPA) of 1930 was landmark legislation that opened the door to regard cultivars as new inventions in the same mode as machines. This Act provided for patent protection of asexually propagated crop species (except potato). In 1970, the U.S. legislature passed the Plant Variety Protection Act to enable plant breeders and associates to obtain proprietary protection (PVP Certificate) for cultivars of sexually propagated crop species. PVPA was amended in 1991 to lengthen the period of protection and to prohibit abuses of the statute. The broadest and potentially most lucrative form of proprietary protection is the utility patent. The watershed Diamond v. Chakrabarty 1980 decision of the U.S. Supreme Court made it possible to patent life forms. Under U.S. patent law, broad claims to the use of inventions for specific purposes may be protected. This possibility greatly expanded the potential value of targeted phenotypes as long as the requirements of the U.S. Patent Office could be satisfied. While the potential value of new plant cultivars protected by utility patents is great, filing cost and time requirements are onerous. Many inventors are starting to use copyright and trademark protections in addition to patents and PVP since the process is easier and protection can last much longer. As the prospective value of plant germplasm has skyrocketed, and the ability to identify genes has become more powerful, maintenance of accurate records and sharing of germplasm through formal material transfer agreements has become essential. Public institutions are becoming more active in the protection and licensing of plant cultivars as a means of increasing revenue flow. While it may be feasible to garner legal protection of inventions, the cost of enforcing and prosecuting the PVP certificate or patent may ultimately exceed the value of the opportunity.