b'nesses, Martin says. This is not something we can lose. In Capes opinion, Americas IP framework itself is At the heart of IPSAs concerns about intellectual prop- not a competitive concern in relation to seeds and traits. erty are the rules concerning patents in the United States. Rather, it is the way IP rights are administered by the Innovation needs to be rewarded, Martin says. Theowners that pose challenges to competition. current patent system rewards innovators for 20 years.In his own submission to Vilsack, Cape notes that in The very reason patents expire is to allow others tothe context of the first generation of biotech traits, the IP improve on existing technology. A system that continuesregime enabled the development and commercialization to hold innovations too closely and does not allow out- of the traits at a reasonable cost. With next-generation side improvement must be changed. traits and trait stacks, the benefits have waned while also Martin notes that IPSA members are very concernedbecoming more expensive. At the farm level, the next about adequate access to technology. While it is appro- generation traits accomplish the much same thing as the priate that registrant companies have their voices heard,old traitsherbicide tolerance and insect resistance. including the right to communicate with EPA, their eco- In other words, biotech traits in current seed offerings nomic interests do not align with those of future trait reg- generally maintain the original benefits, but at greater istrants and farmers interested in purchasing post-patent,cost, Cape says. At the same time, alternatives, such traited products, he says. as conventional varieties and first-generation traits are The first commercial biotechnology event in theincreasingly difficult to find and access, he adds.United States went off-patent in 2014. However, no sub- I honestly dont view the intellectual property laws, stantial post-patent use of biotechnology events has so farnecessarily, as being a problem, he says. emerged, Martin notes. The primary issue is the way in which they are administered by the owners. When you sit down and look at some of these contracts, theyre very onerous, Cape says. Examples include mandatory disclosure of licensees A SYSTEM THAT CONTINUES TO HOLDcustomer data, disclosure of current and future business plans with detailed information regarding plans for indi-INNOVATIONS TOO CLOSELY AND DOES vidual products (including sales projections), and disclo-NOT ALLOW OUTSIDE IMPROVEMENT MUST sure of licensees financial statements. BE CHANGED. Calls for ChangeTo address the situation, IPSA would like to see two major Todd Martin overhauls made to the United States patent framework, namely: Patent laws must be shown to be reasonable and not perpetual. The ability to artificially extend patent life Enormous Amount of Power through legal manipulation must end, so that others may Joel Cape, an Arkansas-based lawyer specializing IP pro- build new innovation on top of the current innovation, tection for plants and plant materials, agrees that patentIPSAs letter says.protection on a number of first-generation biotech traits Further, IPSA proposes that current biotechnology have not resulted in generic versions in the marketplace.traits have reached the point in the industry where there Cape says this is largely due to the fact that germplasmmust be the freedom to access those traits by any com-patents appear to be deployed as biotech trait patents arepany or organization without delay and under reasonable expiring, coupled with a registration process under theterms. Federal Insecticide, Fungicide, and Rodenticide Act thatCape adds that access to post-patent genetics and traits inhibits access. is vitally important and is a common feature of other As a result, traits that become generic are madeagricultural input markets. He adds that the seed/trait available through germplasm that is newly protected. Thesector would also benefit from the sorts of legislation and result precludes access to generic traits and lower-costpolicies that are employed in other agricultural markets, seed, he says. which provide guardrails for acceptable practices and There are a lot of moving parts to it. Theres no doubtprovide remedies for those that are deemed unfair, Cape that consolidation in the seed industry is a major, majoradds.factor. Three decades ago, there was a proliferation ofMartin acknowledges that it will be an uphill battle seed companies in the United States. Many of those seedfor IPSA to level the IP playing field in the United States. companies did their own breeding and developed theirHe says that out of 74 comments submitted to Vilsack as own genetics, and they were all bought up, Cape says.part of the USDAs request, only a handful take a position As a result, those genetics are now owned, typically,similar to IPSAs.by one of the Big FourSyngenta, Corteva, BASF andWe need other organizations to stand up and say, Bayer. The biotech traits contained within those geneticsHey, were looking at whats happening in the market-wield an enormous amount of power in the seed market. place and change is needed, he says. 10GERMINATION.CASEPTEMBER 2022'