Seed World explains a new House bill that would limit federal intellectual property protection for plants. It would restrict the enforcement of certain contracts involving research, breeding and seed saving.
The U.S. House of Representatives introduced a bill that would change which forms of federal intellectual property protection could be used for plants, plant varieties and plant germplasm.
Rep. Jim McGovern, D-Mass., introduced the Fair Seeds for Farmers Act, H.R. 9681, on July 14. Rep. Greg Casar, D-Texas, joined as an original co-sponsor. The bill was referred to the House Judiciary Committee and has not received a committee vote or advanced to the full House.
The proposal would amend the Leahy-Smith America Invents Act by adding a new section limiting federal intellectual property protection for plants. It would also restrict the enforcement of certain contracts involving the use of plant material.
The legislation remains a proposal. It would not change current law unless it passes both chambers of Congress and is signed by the president.
Limiting the Available Forms of Protection
Under current law, plant-related innovations can receive several forms of intellectual property protection. The U.S. Patent and Trademark Office issues utility patents for eligible inventions that can include genes, traits, methods, plant parts and plant varieties. It also issues plant patents for qualifying new and distinct asexually reproduced plant varieties.
The USDA Plant Variety Protection Office administers a separate system under the Plant Variety Protection Act. Plant Variety Protection certificates are available for eligible sexually reproduced, tuber-propagated and asexually reproduced plant varieties. USDA says the certificates protect most varieties for 20 years and vines and trees for 25 years.
The Fair Seeds for Farmers Act would allow developers to protect plants, plant varieties and plant germplasm only through the Plant Variety Protection Act or the Plant Patent Act of 1930.
In practice, the bill would remove utility patents as an option for intellectual property protection involving plants, plant varieties or plant germplasm. Plant Variety Protection certificates and plant patents would remain available for material that meets the requirements of those laws.
The bill does not separately explain how the limitation would apply to patent claims covering genes, traits, breeding methods or plant parts, all categories the USPTO currently identifies as potentially eligible for utility patent protection.
Research, Breeding and Seed Saving
The legislation would also address contracts governing plant material use.
The bill bars enforcement of new contracts that restrict research, breeding, experimentation, seed saving or propagation. It does not limit the provision to a specific company size or type of seed business.
The Plant Variety Protection Act already includes exemptions for certain activities. Federal law allows the use and reproduction of a protected variety for plant breeding or other bona fide research without infringing the PVP certificate.
The law also allows a person to save seed produced from legally obtained seed and use it to produce a crop on that person’s farm, subject to limitations within the act. USDA notes that patents or contracts can place additional restrictions on some varieties sold with PVP protection.
The proposed contract provision would prevent future agreements covered by the bill from restricting the listed research, breeding, experimentation, seed-saving and propagation activities.
How the Bill Defines Plant Material
The Fair Seeds for Farmers Act would add federal definitions for “germplasm” and “plant variety.”
It defines germplasm as plant material capable of propagation, including seeds, pollen, tubers or rootstock used in breeding, conservation or research.
The bill identifies a plant variety by genetic traits that distinguish it at the lowest botanical rank. The grouping must be distinguishable from other plant groupings by at least one characteristic and suitable for propagation without changing its defining characteristics.
The bill allows seed, transplants, plants, tubers, tissue culture plantlets or other material to represent a plant variety.
Existing Patents Would Remain in Place
The patent provisions would apply to applications pending on the date of enactment and applications filed after that date. Patents already issued from applications that were no longer pending when the law took effect would remain valid.
The contract provision would apply to contractual obligations and agreements entered into on or after the date of enactment. The bill does not apply that provision to contracts entered into before enactment.
The legislation would not eliminate all intellectual property protection for plant varieties. Developers could continue to seek PVP certificates or plant patents when their material met the requirements of those systems.
The bill does not require seed companies to divest businesses, set or cap seed prices or establish a new federal seed program. It does not provide direct financial assistance to farmers. H.R. 9681 does not include those provisions.
What Happens Next
The House Judiciary Committee has jurisdiction over the bill. The committee could hold hearings, amend the proposal, send it to the House for consideration or take no further action.
For the Fair Seeds for Farmers Act to become law, it would have to pass the House and Senate in identical form. It would then need the president’s signature. As introduced, the bill has not completed any of those steps.
Seed World will continue to follow all the updates about the Fair Seeds for Farmers Act. Please let us know your thoughts, how it would affect your business or your customers. Send comments to editorial@seedworldgroup.com.
