Plant Patents

[Texas Kid]

What is a plant patent?

A plant patent is granted by the Government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant so reproduced. This protection is limited to a plant in its ordinary meaning:

• A living plant organism which expresses a set of characteristics determined by its single, genetic makeup or genotype, which can be duplicated through asexual reproduction, but which can not otherwise be "made" or "manufactured."
• Sports, mutants, hybrids, and transformed plants are comprehended; sports or mutants may be spontaneous or induced. Hybrids may be natural, from a planned breeding program, or somatic in source. While natural plant mutants might have naturally occurred, they must have been discovered in a cultivated area.
• Algae and macro fungi are regarded as plants, but bacteria are not.

The information presented in this publication is tailored to apply to and is limited to patents on asexually reproduced plants. While the United States Patent and Trademark Office (USPTO) does accept utility applications having claims to plants, seed, genes, etc., such practice is beyond the scope of this publication. General information regarding utility practice can be obtained by calling PTO Information Services Division at 1-800-786-9199, or from a registered patent attorney. Intellectual property protection for true breeding seed reproduced plant varieties is offered through the Plant Variety Protection Office, Beltsville, Md., which should be contacted for information regarding intellectual property protection for such crops.

. (Fees are subject to change.)

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Content and Arrangement

With some exceptions, a patent application for a plant is subject to the same requirements as a utility application. Title 37 of the Code of Federal Regulations, Section 1.163(a)) requires that the specification must contain as full and complete a botanical description as reasonably possible of the plant and the characteristics which distinguish that plant over known, related plants. The components of a plant application are similar to those of a utility application and are covered by the following guidelines which illustrate the preferred layout and content for patent applications. These guidelines are suggested for use by one filing a plant patent application:

Arrangement of the Specification

The following arrangement is preferred in framing the specification and, except for the title of the invention, each of the lettered items should be preceded by the headings indicated below as tailored for application for a plant filed under 35 U.S.C. 161:

(a) Title of the Invention. The title of the invention may include an introductory portion stating the name, citizenship, and residence of the applicant.
(b) CrossReference to Related Applications (if any, unless included in an application data sheet). Related applications include:

• A utility application from which the claimed plant is the subject of a divisional application.
• A continuation (co-pending, newly filed application) to the same plant filed when a parent application has not been allowed to a sibling cultivar.
• An application not co-pending with an original application which was not allowed.
• Copending applications to siblings or similar plants developed by the same breeding program, etc.

(c)Statement regarding Federally-sponsored research and development (if any).

(d)Latin name of the genus and species of the plant claimed.

(e)Variety denomination.

(f) Background of the invention.

1. Field of the Invention. The field of the invention is intended to identify the botanical and market class of the invention, and to reflect how the plant will be used. This section should indicate the botanical name of the plant by genus and species, and should state the market class of the plant.

2. Description of relevant prior art including information disclosed under 37 CFR 1.97 and 1.99. Here, the parents of the claimed plant, or the known plants to which the claimed plant is related are discussed. Frequently the parent plant or plants are identified in this section and are described as to their most important or distinguishing characteristics. The claimed plant may be compared to the parent plant or plants in this section. If the parent plants are not known,the probable parent plants may be indicated. It is appropriate in this section to indicate how the plant was attained and to detail the necessary averments to how and where the plant has been asexually reproduced. This section must also include a positive statement that the clones or propagules of the claimed plant are identical to the original plant in all distinguishing characteristics so as to establish that the claimed plant is stable.

(g) Summary of the Invention. In the Summary section, the major characteristics of the plant are set forth, and they may be presented as a list of novel characteristics, or by a narrative description of the trait or traits of the plant which set the plant apart from all other plants of the botanical class and the market class of plant.

(h) Brief Description of the Drawing. Under this heading a separate brief description should be presented to describe the contents of each view or figure of the drawing. The drawing in a plant patent must show the plant with the most distinguishing characteristics of the plant in sufficient scale to be identifiable when reduced by as much as 50%. Drawings should be photographic, and must be in color where coloration is a distinguishing characteristic. Where characteristics of foliage, bark, flowers and/or fruit are distinguishing, such plant parts should be clearly depicted in one or more figures of drawing. Figures of the drawing need not be numbered unless specifically required by the examiner. Drawings must be mounted to satisfy the same requirements as drawings in a utility application.

(i) Detailed Botanical Description of the Plant. This section should be a complete botanical description of the claimed plant. Specification of the genus, species and market class may begin this section, and the parents of the claimed plant may be specified in the initial part of this section. The growth habit of the plant should be described as to the shape of the plant at maturity, and branching habit. The characteristics of the plant in winter dormancy should be completely described, if appropriate. A complete botanical description of bark, buds, blossoms, leaves, and fruit should be a part of the disclosure. Plant characteristics which are not capable of definitive, written description or which cannot be clearly shown must be given substantive attention in this portion of the application. These would include, but not are not be limited to, fragrance, taste, disease resistances, productivity, precocity, and vigor. Even if the characteristics are well depicted, the botanical characteristics must be substantively described. The descriptions in this section should be botanical in nature and should be in terms of the art of the plant. The detail of this section should be sufficient to prevent others from attempting to patent the same plant at a later date by simply describing the plant in more detail and with the allegation that the original patent did not state the characteristics being further described.
(j) Claim. A plant patent is limited to one claim. The claim shall be in formal terms to the plant as shown and described, as the claim is statutorily drawn to the plant as a whole. The claim may also make reference to one or more of the unusual characteristics of the plant, but may not claim parts or products of the plant. The claim must be in single sentence form.
(k) Abstract of the Disclosure. The abstract is a brief description of the plant and of the most notable or novel and important characteristics of the claimed plant. Preferably, the description of the plant will be a condensed review or presentation of the most distinguishing characteristics of the plant.

 

[Texas Kid]

Preparation of the Application

While background information for specific classes of plants may be readily available, one seeking to file a plant patent application should be thoroughly familiar with the characteristics of the plant, and must assure that the plant is stable. Invention for purposes of a plant patent is a two step process:

• The first step is the discovery step which involves the identification of a novel plant. This step could be performed in any cultivated area. It could involve the identification or recognition of an offtype plant in a monoculture of a known variety or the identification of a desirable mutant which was either spontaneous or induced. Or, it could result from the identification or recognition of an outstanding individual within the progeny of a cross made in a planned breeding program.
• The second step, which consists of asexual reproduction, tests the stability of the claimed plant to assure that the plant's unique characteristics are not due to disease, infection, or exposure to agents which cause a change in the plant's appearance which is transitory and not due to a change in the genotype of the plant.

It is important that each of the above steps is satisfied before an application is filed. The inventor of a plant must have discovered or identified the novel plant, and must have asexually reproduced the plant and observed the clones so produced for a sufficient amount of time to have concluded that the clones are identical to the parent plant in all characteristics. It would be inappropriate to file an application before the second step of invention had been completed. Filing of an application before the second step of invention has been completed will result in rejection of the claim as being premature and nonstatutory.

Oath or Declaration

The applicant (or applicants) for a plant patent must be the person (or persons) who has (or have) invented or discovered and asexually reproduced the new and distinct variety of plant for which the patent is sought. In addition to the averments required for a utility application's oath or declaration, those applying for a plant patent must also state that applicant(s) has or have asexually reproduced the plant. If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area.
The Drawing

Plant drawings are normally photographic, but may be presented in other mediums, such as in permanent water color renderings, which faithfully present the appearance of the plant. Such drawings are not mechanical drawings and should be artistic and competent in their execution. Figure numbers and reference characters need not be used unless specifically required by the examiner. The drawing must disclose all of the distinctive characteristics of the plant which are capable of visual representation.
Drawings may be in color. Where color is a distinguishing characteristic of the new plant, the drawing must be in color. The colors depicted must correspond with their respective color designations set forth in the specifications defined in a recognized color dictionary which is specifically identified in the specification. Two copies of color drawings must be submitted. Color drawings may be made either in permanent water color or oil. Photographs or permanently mounted color photographs are acceptable. The paper used in mounting plant drawings, in any case, must correspond in sizes, weight and quality to the paper required for other drawings, i.e., in a utility application. The margin requirements of drawings are also the same as with other patent drawings.
Drawings requirements will be strictly adhered to because the claim incorporates the drawing by reference.

Final Preparation and Assembly

Before an application is filed, the (clones of the) plant must have been carefully observed during the testing process. Because the botanical description of the plant must be reasonably complete, it would not suffice to describe just the fruit, or flower, or bark, or leaves of any specific plant, even if these plant parts were the valuable substance of the plant in commerce or the only parts seem to be distinctive or different. It would be inappropriate to describe just the bark, roots and juvenile growth of a rootstock, even if only these parts would normally would be seen by or important to the consumer who was to purchase the plant.
In preparation of a plant patent disclosure, all parts of the plant should be carefully observed through at least one growth cycle and such observations should be recorded in detail. Because many plants (like pine trees of the same species, asparagus plants, bluegrass plants, etc.) may look very similar, it may take the collective differences in a number of traits to distinguish a new cultivar. Failure to record characteristics and differences at their time of availability in the growing season could result in applicant not being able to adequately botanically describe the claimed plant when the specification is drafted. Incomplete records of a claimed plant may render it impossible to overcome defects identified in an examiner's rejection or at the very least prolong prosecution of the application.
Among the factors which must be ascertained for a reasonably complete botanical description for the claimed plant are:

• Genus and species
• Habit of growth
• Cultivar name
• Vigor
• Productivity
• Precocity (if applicable)
• Botanical characteristics of plant structures (i.e. buds, bark, foliage, flowers, fruit, etc.)
• Fertility (Fecundity)
• Other characteristics which distinguish the plant such as resistance(s) to disease, drought, cold, dampness, etc., fragrance, coloration, regularity and time of bearing, quantity or quality of extracts, rooting ability, timing or duration of flowering season, etc.

The amount of detail required in a plant patent application is determined on a casebycase basis, and is determined by the similarity of the prior art plants to the plant being claimed. The examiner will evaluate the completeness of the application. The examiner's judgment may be tempered by the level of activity in a specific market class. The botanical description of a plant in a market class with a high level of commercial activity may require greater detail, substance and specificity than that for a plant in a market class of little activity.

The Examination

Upon filing, the application is reviewed for formalities in the USPTO Initial Processing Branch where it is assigned a serial number, assembled into a file jacket, and reviewed by application examiners for formal requirements. If found in compliance, the application is then forwarded to the examining group, where it is classified and assigned to a patent examiner. The application is then filed in chronological order, by serial number, to await examination on the merits.
When the application is taken up by the examiner, it is again examined for formalities. Points of concern in this portion of the examination include:

• Title. The title must include the market name of the plant. The name of the plant is searched to assure that it has not previously been used to describe a plant of the same botanical or market class, or is confusingly similar to an existing plant sharing the same botanical or market class.
• Oath or declaration. The oath or declaration is reviewed to assure that it is of the proper plant format noted above, that it is properly signed and dated, and it includes applicant's address.
• Presence of an Abstract. The abstract is reviewed for length and content. An abstract must be present, and should be on a separate page.
• Arrangement of the components of the specification. The application will be reviewed to ensure that each required component of the application is present, that proper headings are presented, and that each component is within the preferred arrangement presented above.

When satisfied that the application is complete and formal, the examiner will examine the disclosure on the merits. This examination will typically include assessment of:

• Completeness of botanical description. The description of the plant must be complete to the point of reasonably distinguishing the claimed plant from the most closely related plants, both patented and unpatented. If the claimed plant is of a species which has not been previously patented, the details of the specification will be compared with available descriptions of the species to assure that the specification describes at least one clearly distinguishing trait not previously described as characteristic of the species,or a combination of characteristics which are unusual within the species. If applicant's description is broad or brief, and such description falls within general descriptions of the species of claimed plant, this will form a bonafide basis of rejection. If major characteristics of the plant have not been botanically described, the disclosure will be objected to (and the claim rejected) by the examiner as incomplete with the reasoning of the examiner forming a basis for objection/rejection.
• Novelty of the claimed plant. The description of the claimed plant will be compared with the closest available prior art. Prior art constitutes those plants known and available to the skilled artisan at the time of applicant's invention. If the disclosure of the application does not distinguish the claimed plant over such previously known and available plants (either patented or unpatented) the claim will be rejected as failing to distinguish the claimed plant over the known plant. A plant patent or published botanical description of the prior art plant will be cited to establish the existence of the referenced plant. Should such a rejection be extended, it becomes incumbent on the applicant to amend the disclosure to include further botanical description of the claimed plant to distinguish over the known plant, if such is possible. Alternatively, or in addition, the applicant may argue how and why the originally filed disclosure factually distinguishes the inventive plant over the plant of the reference.
• Obviousness. The plant will be examined based on the standard statutory and court determined tests of obviousness. The factual inquiries that are applied for establishing a background for determining obviousness under Title 35 United States Code, Section 103 include:

 

[Texas Kid]

Determining the scope and contents of the prior art;
Ascertaining any differences between the prior art and the claim at issue and if there are any in fact;
and Resolving the level of ordinary skill in the pertinent art.
The claimed plant must be indicated to have been suggested by the prior art relied on by the examiner, and must be shown to have been reasonably expected by the reference or references relied on by the examiner before such a rejection can be seen as constituting a prima facie case of obviousness. Normally, if a reasonable prima facie case of obviousness cannot be developed by the examiner, a rejection based on obviousness will not extended. Such a rejection may be extended where the prior art indicates that a known method of breeding, such as mutation induction breeding, using known and effective mutagens in dosages known to work, would reasonably be expected to result in mutation in a specific direction and of a specific magnitude, or where the prior art might suggest reasonable results after attempts to alter a plant through known processes. Examples include the tissue culture of diverse genotypes of a chimera to separate the different genotypes, or the application of colchicine to plant cells to double chromosome numbers.

If the application is formal, complete and determined by the examiner to be drawn to a plant which was both novel and unobvious, the application will be allowed by the examiner and a notice of allowance forwarded to the applicant.

Once allowed by the examiner, the application will be forwarded to the USPTO Issue Branch, where it will await payment of the issue fee by applicant. Upon payment of the issue fee, the application will be published in due course.

Helpful Hints

• Make every attempt not to present a name for the plant which has already been used or is confusingly similar to a plant of the same market or botanical class. Search old catalogs and available international register listings before assigning a name to a plant.
• File all drawings in duplicate. Be sure that two formally mounted sets of drawings accompany the application when filed, and that these are of reasonable fidelity to the specified colors of the plant. Be sure that the scale and clarity of the drawings are appropriate to allow for adequate reproduction even if reduced in scale upon publishing. Include a transmittal sheet which itemizes the contents of the application as filed.
• File each individual application in a separate envelope, and be sure to include all of the parts of each application in the same envelope. Include a self-addressed postcard itemizing all of the components of the application (see MPEP § 503) for return to applicant with a preliminary indication of the serial number of the application.
• Model the application after a patent of acceptable format and content which describes a plant which is related to or in the same market class as the claimed plant, if one is available.
• Check that the oath or declaration is that required for a plant patent application. Ensure that the oath or declaration has been signed and permanent ink or its equivalent, and is signed no earlier than three months prior to the filing of the application. Check that the mailing address of the inventor(s) is/are correct and complete.
• Where color is a distinguishing characteristic of the plant, specify the color of the plant as defined by reference to an established color dictionary which is recognized in this country.
• Be sure that drawings filed are complete, correctly mounted, and reasonably correspond with the colors of the plant which are specified and to the true and characteristic plant coloration.
• Include the appropriate filing fee, search fee, and examination fee with the application to avoid processing delays.
• Direct preexamination questions concerning the application to the Examiner, by telephone,to expedite prosecution. Include a current telephone number with all correspondence with the USPTO.

Correspondence

New patent applications should be mailed to:

Commisioner for Patents
P.O. Box 1450
Alexandria, VA 22313-1450

 

[Texas Kid]

Plant/Petty/Innovation Patents". Utility patents in the United States are comparable to the standard patents that are awarded both in Australia (under the Patents Act (1990)) and in Europe.

What can be patented?
In the United States, any living organism that is the product of human intervention (such as by some breeding process or laboratory-based alteration) qualifies as a composition of matter, which is patentable (Diamond v Chakrabarty (1980) 447 US 303). As a result, plants are patentable subject matter (35 U.S.C. 101). Furthermore, the United States has extended patent protection to plants produced by either sexual or asexual reproduction and to plant parts including seeds and tissue cultures (Ex parte Hibberd (1985) 227 USPQ 433).

In Australia, the Patent Act (1990) allows all technologies to be patented (except 'human beings and the biological processes for their production') provided that there is an "invention", defined as 'an innovative idea which provides a practical solution to a technological problem'.

In addition or as an alternative to obtaining a patent through the patent office in individual European countries, patent grants in nearly all European countries can be gained from filing at the European Patent Office and registering the allowed claims in national patent offices. This means of patenting is controlled by the European Patent Convention (EPC). Historically, each European country was governed by their own national patent laws, however the introduction of Directive 98/44/EC (effective in all European Union Member States 30th July 2000) aims to harmonize protection for biotechnological inventions (including plant protection) amongst the European Union members. Thus, each member country is required to bring their national laws in line with the Directive, although some may not yet be fully in compliance.

ii) Types of allowable claims
Utility and standard patents may be used to claim exclusionary rights in

• new varieties of plants (U.S. only),
• transgenic plants,
• plant groups,
• individual plants and their descendants,
• particular plant traits,
• plant parts,
• plant components (e.g. specific genes or chromosomes),
• plant products (e.g. fruit, oils, pharmaceuticals),
• plant material used in industrial processes (e.g. cell lines used in cultivation methods),
• reproductive material (e.g. seeds or cuttings),
• plant culture cells,
• plant breeding methodologies, and
• vectors and processes involved in the production of transgenic plants.

Note that this list provides examples and is not exhaustive.

iii) Inclusions and Exclusions
Natural source material should not be coverable by patents as exclusionary rights in any country in the world, because natural source material is not novel (see below).

In the U.S. and Australia individual plant varieties are patentable. In Europe, individual plant varieties per se are not patentable, however, a plant which is characterized by a particular gene (as opposed to its whole genome) is not included in the definition of a plant variety and is therefore patentable.

In Europe, transgenic plants are patentable if they are not restricted to a specific plant variety, but represent a broader plant grouping. The European Directive considers plant cells to be "microbiological products" and as a result are patentable.

 

[Texas Kid]

EXAMPLE

While bushwalking, Amy discovers a plant which nobody has ever previously seen or documented. Can Amy obtain a patent for the plant?

No. Amy can not patent the plant as it is natural source material and is not novel (see below).

Standards of patentability and the rights granted
The legal criteria for patentability are substantially similar across all jurisdictions. In order to show that the plant, plant technology or plant product of interest is an invention:

the patent application must show:

1) novelty

2) non-obviousness, or an inventive step

3) usefulness (United States) or industrial applicability (Europe, Australia)

4) enablement

5) claim clarity

6) written description

7) best mode (United States only)

From the date that a patent is granted, the patent holder has the exclusive right to exploit the invention or authorize another person to do so until the patent expires. Patent rights are considered personal property and may be assigned to other parties.

A utility patent grants the owner the right to exclude others from:

1) making,

2) using,

3) selling or offering for sale or

4) importing

the protected invention for a 20 year period* from the earliest file date.

*If a patent application was filed prior to June 8, 1995, the patent term of protection in the United States is 17 years from the date of issuance.

 

[Texas Kid]

EXAMPLE

John is the sole owner of a patent for herbicide resistant corn plants. He becomes aware that his former co-worker Julie is making and selling the same patented corn plant. What can John do?

John, as the patent owner has the exclusionary right to stop others from making and selling his invention. Julie is therefore infringing John's patent, and John can bring a lawsuit for infringement or ask that Julie take out a llicense.

v) Exemptions
Exemptions to patent infringement that are relevent to patenting of plants are provided in some jurisdictions.

In United States case law, an 'experimental use exception' to patent infringement was thought to exist which allowed researchers free access to the invention in order to use it for experimental purposes. However, based on the decisions in recent cases the doctrine certainly no longer exists and it is highly doubtful whether the doctrine ever actually existed.

In Australia, limited exemptions are defined within the legislation. The 'prior use' exemption allows someone who was utilizing the patented product or process before the priority date of a claim to continue using the patented product without infringement. The use of a patented product on board a foreign vessel that accidentally comes into the patent area is also exempted from infringement.

The EU Directive 98/44/EC provides a 'farmer's privilege'. Under the Directive, farmers are allowed to use patent protected seeds freely for their own use and the resulting plant material is free from protection. Farmers are not permitted however, to re-sell the patented seed. Member States are able to define their own exemptions to patent infringement (see, for example, Patents Act 1977 (UK), s60 (5))

Although not an exemption per se, in the United States but not in Australia or Europe, an inventor has a grace period allowing for retrospective application for a patent. Patent rights are not automatically foregone by public disclosure, such as publication or commercialisation, provided that a patent is applied for within 12 months of the disclosure. Note that other countries (e.g., Japan) have a limited grace period, and other countries are considering instituting one.

EXAMPLE

Tom, a U.S. resident, was the first person to extract oil from sunflower plants. He presents his findings at a biotechnology conference. It is not until after his presentation he realises that his sunflower oil may be of commercial significance. Is it too late for him to patent his invention?

Tom can still obtain a patent in the United States provided he applies within twelve months of the conference and the oil or its method of extraction meets the requirements for patentability.

 

[Texas Kid]

B. Plant Patents
Specific plant patents are only available in very few countries.

The Plant Patent Act was enacted by US congress in 1930. It was introduced primarily to benefit the horticulture industry by encouraging plant breeding and increasing plant genetic diversity.

i) Limited types of plants are eligible for protection
The Plant Patent Act 1930 (35 U.S.C. 161) provides for:

patent protection of all asexually reproduced plants

EXCEPT:

1) tuber-propagated plants and

2) plants found in an uncultivated state.

Plant patents encompass newly found plant varieties as well as cultivated spores, mutants, hybrids and newly found seedlings on the proviso that they reproduce asexually. Asexual reproduction is defined as any reproductive process that does not involve the union of individuals or germ cells. It is the propagation of a plant to multiply the plant without the use of genetic seeds. Modes of asexual reproduction in plants include grafting, bulbs, apomictic seeds, rhizomes and tissue culture.

Specifically excluded from protection under the Plant Patent Act are tuber-propagated plants and plants found in an uncultivated state.

ii) Patentability requirements are less stringent for plant patents
The requirements that must be fulfilled in order to obtain a Plant Patent are the same as those for utility patents (see Patents (iv) above). However, the IMPLEMENTATION of these requirements is LESS STRINGENT.

For example, the Plant Patent Act provides that plant patents will not be rejected or invalidated if the plant is not fully described or enabled. It does however, require that the new variety is described as complete as reasonably possible.

It is also not necessary to deposit the claimed plant at an official depositary.

The ordinary test of 'non-obviousness' is not applied to plant patents. This is primarily due to the fact that it is extremely challenging to develop a new plant variety that is stable and can be preserved by asexual reproduction.

iii) Plant patents confer an exclusionary right
A plant patent gives the patent holder the right to:

exclude others from asexually reproducing, using, selling, offering for sale or importing into the United States the reproduced plant (or any of its parts)* for a period of 20 years.

In contrast to utility patents, plant patents only protect a single plant or genome and the protection conferred is quite limited. It does not protect the plant characteristics, mutants of the patented plant nor technologies associated with its cultivation. Because plant patents are granted on the entire plant, it follows that only one claim per plant patent is permitted.

U.S. courts have held that a twelve month grace period also applies to plant patents (35 U.S.C �102(b)) whereby a disclosure of a new plant variety or a granted patent of the new variety in a foreign jurisdiction does not destroy patentability provided that the disclosure or foreign patent occurred less than 12 months prior to the plant patent application being lodged in the U.S. If publication has occurred in any other country prior to the 12 month grace period, the plant patent application will be refused (Ex parte Thomson, 25 USPQ 2d 1618 (BPAI 1992)). This interpretation of the law has met with proposals to increase the grace period to 10 years on the basis that often times plants from foreign jurisdictions are held in quarantine by the USDA for a period of more than 12 months, thereby nullifying patentability. To date this idea remains a proposal.

*The Plant Patent Act was amended on 27 October 1998 to extend the exclusive right to plant parts obtained from protected varieties but it is not applied retroactively.

iii) Dual protection is allowed
A utility patent and a plant patent can both be obtained to protect the same plant.

It is possible to obtain protection for the same plant under both a utility patent and a plant patent in the United States at the same time, provided that the requirements for patentability for both types of patents are fulfilled.

EXAMPLE

Marc and Crystal want to obtain protection in the U.S. for their new variety of asexually reproducing plant. They also wish to protect a special aluminum device that contains specific amounts of hormones and other nutrients needed to ensure the plants survival. What types of protection are available?

Marc and Crystal can obtain a plant patent for the new variety plant provided they meet the requirements for patentability. However the device required to guarantee survival of the plant is unable to be protected by this system. Utility patents would provide protection to BOTH the special device and the plant variety provided the criteria for patentability are fulfilled.

2. Plant Breeder's Rights* (PBRs)
While in the U.S. plant varieties can be protected under the patent system, in the majority of jurisdictions including Australia, the protection of plant varieties under the patent legislation is not permitted. Having a form of protection in place that is available to new plant varieties is thought to be important in order to encourage and promote plant breeding, encourage the importation of foreign varieties, promote the exportation of plant varieties and generally benefit the market place.

* The term Plant Breeder's Rights is synonymous with Plant Variety Rights.

 

[Texas Kid]

A. Requirement for plant protection under TRIPs
Members of the World Trade Organisation (WTO) are bound by their membership to adhere to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs). The Agreement sets out the minimum standards of intellectual property protection the member countries are required to provide.

One of the most controversial provisions of the Agreement surrounds protection of plant varieties. Article 27(3)(b) of the Agreement allows countries to exclude plants and essentially biological processes for their production from their patent system of protection. The same Article however, states that countries must "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof". Under the Agreement, a country can implement more than one form of plant protection.

The meaning of "sui generis" is one of the contentious issues surrounding the agreement. It is generally believed that the term enables member countries to design their own system of protection for plant varieties if they have elected not to use their patent system for plant protection. What is a sufficient system to qualify as "sui generis" remains to be seen.

B. International Union for the Protection of New Varieties of Plants (UPOV)
The International Union for the Protections of New Varieties of Plants (UPOV) is an intergovernmental organization and not a 'treaty' as such. Countries are not obliged to join UPOV as a result of their affiliation with any other organization or the ratification of any specific treaty. Membership is purely voluntary.

Each member of the organization becomes bound to the UPOV Convention. The Convention requires member countries to provide an intellectual property right specifically for plant varieties. This form of IP protection is often referred to as Plant Breeder's Rights (PBR). As a result of the PBR, the plant breeder is granted a legal monopoly over the commercialization of her plant varieties. Protection allows the breeder to try to recover the costs associated with the development of the variety. By conferring protection on plant varieties, UPOV also aims to provide an incentive to individuals or companies to invest in plant breeding, thereby providing a positive stimulus in the plant breeding industry. The rights granted are for a specific time only (depending on the plant variety), and upon expiration of the time period, the protected variety passes into the public domain.

The UPOV Convention has been revised three times, however not all member countries are bound by the latest convention (1991). Approximately 26 countries remain bound by the 1978 Convention, while Spain and Belgium are bound by the original Convention (1961). The main differences in the two latest agreements can be seen in the table below:

UPOV Convention19781991
Requirements

Distinct, Uniform and Stable

Distinct, Uniform, Stable, New

Protects

Commercial use of reproductive material of the variety

All plant varieties and products including plants that are derived

Duration of Protection

15 years from application date for most species. 18 years for trees and vines

20 years from application date for most species. 25 years for trees and vines

Breeder's Exemption

Yes. Acts for breeding and development of other varieties are not prohibited.

Optional. The decision to include an exemption is dependent on each members national legislation.

The requirements for protection under UPOV require distinctness. The variety must be distinguishable from any other variety which is publicly known at the time of filing the application. The variety must have predictable characteristics and be able to be reliably reproduced. The additional requirement under the 1991 Convention states that the variety must be 'new'. The word 'new' is held to mean that the variety has not been sold or otherwise disposed of by the breeder for commercial purposes prior to filing for protection. However, similarly to a utility patent, natural source material is not protectable. The UPOV Convention does allow a 12 month 'grace period' for sales of the new variety before protection is no longer available (Article 6(1b)).

The latest Convention protects all plant varieties including those that are 'essentially derived' i.e. plants which require the protected variety for their production. The protection offered to the plant variety is an exclusionary right.

Protection confers the right to exclude others from:

1) producing or reproducing,

2) propagating,

3) offering for sale,

4) selling or other marketing,

5) exporting,

6) importing or

7) stocking for any of the above purposes

the protected variety.

However, the protected plant can be used for non-commercial acts (provided they are done privately) and for experimental purposes without infringement.

Considering that many UPOV members are also bound to the TRIPs agreement (due to their WTO membership), UPOV provides a framework by which countries can implement a protection system that generally fulfills the TRIPs requirement of providing 'an effective sui generis system' (see s2A).

 

[Texas Kid]

C. Plant protection mechanisms provided by sample countries
i) Plant Variety Protection Certificates (United States)
The United States is bound by the TRIPs Agreement and is also a UPOV member. Because the United States offers patents for plant varieties, technically it does not need to also provide a sui generis system.

In the U.S. the UPOV Convention is implemented by the Plant Variety Protection Act (1970). Changes to the Act made by Amendments in 1994 extended statutory protection to F1 hybrids and tuber propagated plants and generally brought the United States into compliance with the 1991 UPOV Convention. The Plant Variety Protection Act is administered by the U.S. Department of Agriculture, which issues Plant Variety Protection Certificates (PVPC) for qualifying plant varieties.

The Plant Variety Protection Act protects sexually reproduced plants, including first generation (F1) hybrids and tuber propagated plants (e.g. potato varieties). The requirements and term of this protection offered are exactly the same as those outlined in the UPOV Convention.

The Plant Variety Protection Act requires that a deposit of seeds of the new variety be made at an authorised depositary, and in the case of F1 hybrids, seeds of the parents must also be deposited.

The U.S. has in its national legislation only a limited farmer's exemption. In the case of farmers, protected seed may be "saved" for replanting on their own individual holdings provided that it is not sold to any third parties who use it for reproductive purposes.

Simultaneous protection by both a utility patent and a PVPC is allowed.

(J.E.M. AG Supply v Pioneer Hi-Bred International ((122 S. Ct. 593, 2001)).

*Any variety which was protected prior to the 1994 amendments is subject to the original Plant Variety Protection Act (1970) which only provides 18 years of protection for non-woody plants. However, applications submitted prior to April 4, 1995 (effective amendment date) may be re-submitted in order to secure the extended term of protection provided by the amendments.

ii) Plant Breeder's Rights (Australia)
Similarly to the U.S., Australia is both a WTO and UPOV member and has implemented the UPOV protection system as a mechanism for complying with TRIPs. Australia is signed onto the 1991 Convention. As a result, plant varieties are protected in Australia by a Plant Breeder's Right (PBR) under the Plant Breeder's Rights Act (1994).

The requirements, term and rights conferred by the UPOV Convention are implemented under the Plant Breeder's Rights Act.

In Australia, a PBR is obtained from and administered by the Plant Breeder's Rights Office, in contrast to patents which are granted by IP Australia. Recently the Plant Breeder's Rights Office was brought within IP Australia.

A choice is usually made between the two protection systems depending on the level of protection sought and the ability to satisfy the necessary requirements. PBRs are generally obtained much faster than a patent due to the lack of examination and are also much cheaper to obtain. They are therefore desirable where protection is required in a short period of time and there is no need to acquire rights over the use of the variety for non-commercial purposes. Where comprehensive exclusive rights are desired, protection under the patent system would be more suitable.

iii) Community Plant Variety Rights (European Union)
Plant variety protection in the European Union is a result of the European Convention (Regulation 2100/94/EC), which is based on the 1991 UPOV Convention. It was introduced in order to harmonise and streamline the method of plant variety protection available throughout Europe.

The Community protection of plant varieties (CPVR) enables applicants, on the basis of one application, to be granted a single intellectual property right which is operative throughout all countries that are members of the European Union. A CPVR can only be transferred or ceased within the EU Community on a uniform basis. That is, a CPVR can only be valid (or cancelled) across all EU countries, not selected individual countries.

The CPVR exists alongside individual European countries' national plant protection legislation as an alternative form of protection. As a result, it is not possible to hold protection for the same plant variety under both the Community and a national system at the same time. Where a CPVR is granted in r elation to a variety for which a national right has already been granted, the national right is suspended for the duration of the CPVR.

The CPVR confers protection to all 'new' botanical genera and species, including their hybrids, provided that the varieties meet exactly the same requirements as outlined under the UPOV Convention. A CPVR is issued by the Community Plant Variety Office in Angers, France.

EXAMPLE

George wishes to obtain a CPVR for his new plant variety in Germany. He is unsure as to whether his CPVR will provide protection in Italy and Switzerland.

The CPVR obtained by George will confer protection to George in ALL European Union countries. There is no need to register individually in each country. George will automatically be granted protection in Italy, however not in Switzerland as Switzerland is not a member of the EU.

 

[Texas Kid]

iii) A sui generis system (India)
Many developing countries have an agricultural economy that is geared towards the domestic as opposed to the export market. Such an economy is dependent upon farmer-produced seed of varieties that are both maintained and further adapted to their local growing conditions by small-scale farmers. Developing countries with such an economy want to acknowledge the rights of farmers arising from their contribution to crop conservation and development and the sharing of their knowledge on adaptive traits. They also want to encourage farmer-to-farmer exchange of new crop/plant varieties that are adapted to the local growing conditions. As a result, some developing countries have chosen a sui generis system of plant protection that is not compliant with UPOV in that it allows farmers to improve and adapt the seed in order to make it more successful in the local conditions.

Under the Indian Protection of Plant Varieties and Farmers' Rights Act 2001, plants are divided into four main classes: new varieties, extant varieties, essentially derived varieties and farmers' varieties. The regime for plant protection is similar to that set out by UPOV and the requirements for protection are novelty, distinctness, uniformity and stability. Under Article 39(iv) the farmer is entitled to save use, sow, resow, exchange, share or sell his farm produce including seed of a protected variety. However he is unable to sell seed that has is branded with the Breeders name. In this way the breeder has control of the commercial marketplace without threatening the famers' ability to practise his livelihood.

The Indian Act also contains provisions for "benefit sharing" whereby the local communities are acknowledged as contributors of land races and farmer vartieties in the breeding of "new" plant varieties.

It is these extra provisions granting rights to both breeders and farmers which makes the Indian system a sui generis method of protection. China and Thailand are other examples of countries that do not implement a UPOV style protection system.

3. Trade Secrets
A. A trade secret is confidential information
A trade secret is commonly regarded as:

any formula, pattern, device, or compilation of information that is used in a business and gives that business an opportunity to obtain advantages over competitors.

The information is kept from the public and from competitors, usually by the use of confidentiality agreements with employees. These agreements confer an obligation on the employees to keep the information secret. These agreements can be enforced by the court.

Generally for a trade secret to exist there must have been:

Secrecy: in the form of a confidentialtiy a greement or covenant. External forms of protection such as security systems etc also impart the necessary requirement of secrecy.

Novelty: The subject of the secrecy must have been novel.

Value: The subject of the trade secret must be of some value or give some advantage over competitors.

For a breach of a trade secret to occur, there must have been an improper taking. That is there must have been a breach of the secrecy whether by theft or the breaking of a confidentiality agreement.

One advantage of using trade secret law to protect an invention is the unlimited time for protection. Some disadvantages however are that trade secret protection does not prevent competitors from legally reverse engineering a product to determine the secret or from independently duplicating the information. Inventions involving the use of DNA are now unlikely to be protected by trade secrets due to the ability to reverse engineer.

B. Trade Secret laws can be used to protect plants
Plants can be protected provided that reasonable efforts have been made to keep the plant variety confidential, secret and out of the public domain. In the United States, trade secrets have been used for decades to protect parental lines of hybrid corn.

Recently a United States court recognized that "genetic messages" of inbred plant varietal lines may be protected by trade secret law subject to the provision that reasonable effort has been taken to preserve the secrecy of the gene sequence (Pioneer Hi-Bred case). In the Pioneer Hi-Bred case it was held that the accidental inclusion of inbred seed in bags of commercially available first generation seed by Pioneer Hi-Bred was not enough to destroy the secrecy surrounding its "genetic message". Reasonable precaution had been taken to keep the "genetic message" contained in the inbred seed out of the public domain.

Under Australian law it is theoretically possible that specific varieties of plants may be afforded protection under the doctrine of confidential information or trade secrets, however to date, no cases involving the doctrine and plant varieties have been brought before the courts. As a result it is currently unclear as to the extent of protection available under the doctrine of trade secrets.

4. Genetic Mechanisms
A. Hybrids
In some cases, specialized plant breeding can present an alternative to intellectual property protection.

Breeders often select individual plants that display beneficial or attractive traits such as a fast growth rate in comparison to other plants or an increase in either herbicide or disease resistance etc. The breeder then crosses these plants with individual plants of different varieties that also demonstrate attractive traits. The resulting progeny are called hybrids.

Seeds resulting from hybrids show an extremely poor ability to reliably reproduce the trait of interest in their progeny or next generation.

It therefore becomes necessary for the farmer to purchase new seed for subsequent plantings. Hybrid selection therefore becomes a way for the plant breeder to protect their varieties from exploitation as they are safe in the knowledge that the farmer or purchaser can only access the trait reliably for one generation. Farmers and others must obtain more seed from the breeder if they wish to continue to use the same hybrid plants.

Hybridisation therefore serves as a way of not only creating new plant varieties with attractive traits but ensuring some sort of protection for new commercial plant varieties. Although this method of protection is inexpensive and is not subject to legal requirements or restrictions, the breeder has no enforceable remedy available to him/her, except under trade secret law (see above) or by contractual agreement.

B. Genetic Use Restriction Technologies (GURTs)
Genetic Use Restriction Technologies (GURTs) is technology that allows the control of gene expression of an organism, further allowing constraints or restrictions on the use of the organism or trait. The term GURT was developed by the Lead Author (CAMBIA's CEO) of the first study commissioned by the United Nations Convention on Biological Diversity (CBD).

There are two main types of GURTs: variety-level GURT (v-GURT) and trait- level GURT (t-GURT).

v-GURT causes the seeds of the affected plant variety to be sterile in contrast to t-GURT which results in the expression of a selected trait. t-GURT introduces a mechanism for trait expression into the variety which can only be turned on, or off, by treatment with specific chemical inducers. The gene of interest can thus be expressed at particular stages or generations of the crop.

In addition to intellectual property rights, plant breeders in principle are able to use GURTS to strengthen the protection of newly developed plant varieties. The use of v-GURTs requires farmers to buy seeds from the breeder each season and therefore could be used as a way of avoiding the farmers privilege exception to patentability that exist in Europe. However, in some situations v-GURTS are advantageous to farmers as they reduce the need for tillage and do not sprout inappropriately. t-GURTs require the farmer to purchase chemical inducers from the breeder in order for the farmer to be able to make use of the specific traits of the variety ie herbicide resistance.

It should be emphasized that at the time of editing (2007) there are no commercial example of GURTs known anywhere in the world. The initial example, dubbed Terminator by a Civil Society Organization, was from a prophetic patent application that had not reduced the technology to commercial practice.

5. Contracts
The following types of agreements are all governed by contract law as opposed to intellectual property law. There are no international agreements that regulate the law of contracts.

 

[Texas Kid]

A. Material Transfer Agreements
Material Transfer Agreements (MTAs) are legal agreements made between a provider and a recipient party when research material is being transferred between institutions.

Material most often transferred includes plant varieties, transgenic plants, cell lines, germplasm, vectors, chemicals, equipment or software.

The MTA itself contains a written description of the material to be transferred and any limits on the material that the provider wishes. For example some providers may limit the use of the transferred material to non-commercial situations or to a specific field of research. In some cases where publication of results occurs which involve the material it may be necessary to acknowledge the source of the material.

The terms and conditions of the MTA also usually outline the ownership rights, confidentiality provisions and any third party transfer restrictions that the provider of the material wishes to impose.

The agreement acts as a contractual agreement that is often used to protect the rights of ownership of the provider and also to protect the material from unauthorized use.

B. Bag Labels
Bag label contracts are another form of legal protection which can be applied to plants, especially seeds. An explicit contract is described on a bag label which is normally sewn into the seal of a bag. By opening the bag and breaking the seal, the purchaser agrees to comply with the contract.

These contracts are similar to what is commonly known as "shrink wrap licenses" in software. As yet the strength of protection conferred by the bag label is not firmly established.

C. Technology Use Agreements
A technology use agreement is an agreement most commonly between technology suppliers and farmers which usually controls the right to plant a given seed on a specific area of land often for a certain period of time.

The agreement provisions can also include restrictions on the use of proprietary traits in the creation of new varieties and also gives permission for the technology supplier to access the farmers property to check for violations.

This form of property right enforcement has been implemented by producers of agronomic traits in the U.S. and other countries. In some cases, the producers reserve the right to inspect the field of the contracting farmer and to take samples to ensure the compliance of the farmer with the TUA.

A breach of a Technology Use Agreement gives rise to a claim for damages if a breach of contract occurs.

 

[Texas Kid]

What are Plant Patents?

A plant patent is a patent like any other, except that it applies to new varieties of plants. Pursuant to the U.S. Plant Patent Act of 1930, revised in 1995, plant patents are valid for a period of 20 years from the date of filing. They permit the patent holder to control who grows the plant, how it is used, and even the importation of the plant.

The original idea behind plant patents was to patent new varieties of plant created by asexual propagation. However, newly developed plants that produced seeds through sexual reproduction were not perceived as patentable under the system. Therefore, a sweeter corn developed by cross breeding two types of corn seeds could not be patented under the old rules. This restriction on plant patents encouraged farmers to think collaboratively about ways to develop new and improved food crops, which would benefit all growers, the agriculture industry, and American consumers.

A 2001 federal court case changed the rules. In J.E.M. AG Supply Inc., d/b/a Farm Advantage Inc. et al. v. Pioneer Hi-Bred International Inc., the US Supreme Court ruled that patents could be issued for plants developed through genetic engineering or other breeding techniques. As a result, most plant patents today are applied for and granted to genetically engineered crops mainly by large scale corporate farms and agribusinesses. Furthermore, these plant patents are also issued for the DNA of the seed.

How Do Current Plant Patents Affect Farming Practices?

Traditionally farmers saved a portion of the seed from their crops to plant the next year or trade with other farmers. Most farmers referred to this practice as "farmer's rights." However, if there is a patent on the seed a farmer has grown, especially if the seed is genetically modified, the farmer may be prevented from saving the seed to plant the following year. To continue to grow plant patented crops, farmers are often required to sign written contracts stating that they will not save any seed at all. Instead, they must annually purchase their seed from a biotech company rather than other farmers or local seed companies. In fact, seed stores are not the resourceful option they used to be, as larger companies buy them up in an effort to control seed sources. With the changes in plant patents, the ancient rights of farmers and the traditional local seed stores will soon be things of the past.

Along with the changes in practice and seed purchasing, farmers are, by necessity, developing an improved understanding of licenses and technology user agreements issued by seed companies that sell patented seeds. Understanding these agreements is becoming critical as farmers begin to face lawsuits over patent infringement. In recent cases involving genetically modified, patented corn, farmers were considered liable for inadvertent cross-pollination between their non-patented crops and patented crops grown nearby. In another soybean patent infringement case, a North Dakota grower's preference for arbitrating a dispute with the patent-holding Monsanto Company was disregarded by the St. Louis-based agribusiness conglomerate. Instead, Monsanto opted to take the issue to federal court, thus burdening the farmer with large legal and travel expenses to resolve the dispute.

Undoubtedly, the change in plant patents has brought about increased competition between independent farmers and larger agribusinesses. Moreover, as the patent changes affect the way plant seeds are patented by major companies, and as large businesses increasingly control seed distribution and sale, some predict the wide diversity of American farmers' crops will disappear. In the future, it is likely that the fundamental power and responsibility of feeding the Americans and the world will shift from the independent farmer who works the land, to the agribusinesses and corporate farms who own the plant patents, created in the lab.

UPDATE: Following this original posting, Monsanto took an even more aggressive stanceregarding its patents and (at least according to some) sued—or reserved the right to sue—farmers guilty of only “inadvertent” infringement: farmers whose crops may contain Monsanto-patented DNA as a result of the wind blowing pollen from nearby fields. (Monsanto deniesbringing such lawsuits.) In an interesting turn of events, Monsanto was then sued by organic farmers worried that this pollen, from nearby farmers’ fields planted with Monsanto seed, might blow onto their organic fields and mix with their organic crops. These suits sought declaratory judgments that the organic farmers did not infringe Monsanto’s patents…and were thrown out as not presenting an actual controversy (as required for a declaratory judgment suit). One imagines that this ground is not through being tilled.

 

[Texas Kid]

Can a plant be invented? Yes, according to the U.S. Patent and Trademark Office which issues two types of patents for plants: plant patents and utility patents.

Plant Patents
In 1930, the United States began granting patents for plants and in 1931, the first plant patent was issued to Henry Bosenberg for his climbing, ever-blooming rose. Under patent law, the inventor of a plant is the person who first appreciates the distinctive qualities of a plant and reproduces it asexually. In other words, a plant can be created (i.e., by breeding or grafting) or it can be "discovered." Plants discovered in "the wild" or uncultivated state cannot be patented because they occur freely in nature. But a plant discovered in a cultivated area can be patented, even if it is discovered in a cultivated area owned by someone else. In addition, a tuber plant such as a potato cannot be patented.

In order to acquire a plant patent, the inventor must have actually asexually reproduced the plant. Asexual reproduction means that the plant is reproduced by means other than seeds, usually accomplished by cutting or grafting of the plant. Asexual reproduction is the cornerstone of plant patents because that is what proves that the inventor (or discoverer) can duplicate the plant. The patented plant also must be novel and distinctive. For example, consider the Smooth Angel rose plant, patented by Henry Davidson of Orinda, California. It is described as follows in its patent.

A new rose variety of the hybrid tea class distinctive in its character by being near thornless and by having blooms which open with the outer petals being a cream color and the center petals yellow orange as hereafter shown and described.

This rose is novel and distinctive from previous rose plants in the following ways: (1) near thornlessness (i.e., only a few thorns appear on some bushes); (2) an attractive full foliaged spreading plant; and (3) a medium to large, tight centered, full, symmetrical, two toned cream and yellow orange bloom. Asexual reproduction of the Smooth Angel was performed in California and was continued through succeeding propagations.

If a plant has existed in nature and has reproduced, it is not novel. In other words, if the patent examiner can find a previously reproducing version of the plant in nature, a patent will not be granted. However, a patent will be granted if the only previous version was a spontaneous one-time aberration incapable of reproducing. For example, someone discovers and asexually reproduces a seedless fig plant. Even though the seedless fig plant existed in nature, it was not capable of reproducing. Therefore, the plant is novel and would qualify for patent protection. To be distinctive, the plant must have characteristics that make it distinguishable from other varieties.

Plant varieties produced sexually (i.e., by seed) cannot be protected under patent law, but can be protected under a federal law enacted in 1970 known as the Plant Variety Protection Act. This law is administered by the Department of Agriculture and is set forth at 7 U.S.C. §§ 2421, 2422 & 2541.

In summary, the U.S. grants plant patents under the Plant Patent Act to any person who first appreciates the distinctive qualities of a plant and reproduces it asexually.

There is a limit on the extent of plant patent rights. Generally, a plant patent can only be infringed when a plant has been asexually reproduced from the actual plant protected by the plant patent. In other words, the infringing plant must have more than similar characteristics -- it must have the same genetics as the patented plant.

Utility Patents for Plants
Since the late 1980s, utility patents have been issued for man-made plants or elements of plants. These plants can be reproduced either sexually (by seeds) or asexually. These patents have been issued for elements of plants such as proteins, genes, DNA, buds, pollen, fruit, plant-based chemicals, and the processes used in the manufacture of these plant products. To obtain a utility patent, the plant must be made by humans and must fit within the statutory requirements (utility, novelty, and nonobviousness). The patent must describe and claim the specific characteristics of the plant for which protection is sought. Sometimes the best way to meet this requirement is to deposit seeds or plant tissue at a specified public depository. For example, many countries have International Depository Authorities for such purposes.

Although a utility patent is harder and more time consuming to acquire than a plant patent, a utility patent is considered to be a stronger form of protection. For example, a plant protected by a utility patent can be infringed if it is reproduced either sexually or asexually. Because the utility patent owner can prevent others from making and using the invention, does this mean the buyer of a patented seed cannot sell the resulting plants to the public? No, under patent laws, the purchaser can sell the plants but cannot manufacture the seed line.

 

[altitudefarmer]

super interesting read, thanks Tex.
These are the laws Monsanto used to sue farmers who were unintentionally growing their patented strains, due to cross pollination. Ridiculous that they could get away with that. I wonder how many cannabis patents will be applied for/ granted.

 

[Gamrstwin36]

super interesting read, thanks Tex.
These are the laws Monsanto used to sue farmers who were unintentionally growing their patented strains, due to cross pollination. Ridiculous that they could get away with that. I wonder how many cannabis patents will be applied for/ granted.

You can BET PLENTY will be issued. thats why preservation is soo KEY and VITAL right now. Once the Elite put they game down. Its a wrap. dont get caught growing that OG..OR THAT SOUR WHATEVER THEY GONNA CALL IT. Its getting Bleak. But theres hope. and its also Strength in numbers. Great post TK. I know your knowledge on this is vast thanks for sharing.
Respect

 

[caregiverken]

monsanto lawyers probably wrote those laws :finger:

 

[We Solidarity]

haven't seen an actual plant patent yet since it's still federally illegal but I've seen plenty of b.s. c&d letters to dispensaries from people trademarking strain names...

 

[lino]

GREAT POST TEX thanks

caregiverKen,,, Monsanto has been hiring MANY college kids from CSU to grab cannabis patents...
http://www.kcet.org/living/food/food-rant/monsanto-to-take-over-the-weed-industry.html

BIG misconception is most of the patent breeding programs are performed NON-GMO:
Furthermore, genetically modifying consumer crops proved to be inefficient and expensive. I'd/studies estimate that adding a new gene takes roughly 10 years and $100 million to go from a product concept to regulatory approval. And inserting genes one at a time doesn’t necessarily produce the kinds of traits that rely on the interactions of several genes. Well before MONSANTO veggie business went kaput, Monsanto knew it couldn’t just genetically modify its way to better produce; it had to breed great vegetables to begin with. my point: “The best gene in the world doesn’t fix dogshit germplasm.”
Also What fixes the germplasma- Crossbreeding. In the process of learning how to engineer chemical and pest resistance into corn, researchers at Monsanto had learned to read and understand plant genomes—to tell the difference between the dogshit germplasm and the gold. And they had some nifty technology that allowed them to predict whether a given cross would yield the traits they wanted.
My key concepts to learning to patent breeding
The key is a technique called genetic marking. It maps the parts of a genome that might be associated with a given trait, even if that trait arises from multiple genes working in concert. Researchers identify and cross plants with traits they like and then run millions of samples from the hybrid—just bits of leaf, really—through a machine that can read more than 200,000 samples per week and map all the genes in a particular region of the plant’s chromosomes.
Monsanto had more toys too. In 2006, Monsanto developed a machine called a seed chipper that quickly sorts and shaves off widely varying samples of cannabis germplasm from seeds. The seed chipper lets researchers scan tiny genetic variations, just a single nucleotide, to figure out if they’ll result in plants with the traits they want—without having to take the time to let a seed grow into a plant. Monsanto computer models can actually predict inheritance patterns, meaning they can tell which desired traits will successfully be passed on. It’s breeding without breeding, plant sex in silico. In the real world, the odds of stacking 20 different characteristics into a single plant are one in 2 trillion. In nature, it can take a millennium. Monsanto can do it in just a few years. Sorry guys , can you tell I'm a Monsanto fan... luv hi tech breeding

And this all happens without any genetic engineering. Nobody inserts a single gene into a single genome. (They could, and in fact sometimes do, look at their crosses by engineering a plant as a kind of beta test. But those aren’t intended to leave the lab. G13) Some colleagues realized that they could use these technologies to identify a cross that would have highly desirable traits and grow the way they wanted. And they could actually charge more for it—all the benefits of a GMO with none of the stigma.

 

[DaFatBoy]

Good read thanks for sharing.

 

[Gamrstwin36]

NEVER believe devil's with a Closed hand. I think patents on the EARTHS work is just silly and outrageous. The devil's are at work and have ALOT of zombies, and Sheep believing in their lies. Just sad what's going down.
Respect