In December and January, I attended IP group meetings at three separate agriculture/horticulture industry conferences: ASTA’s CSS & Seed Expo, the Mid-Atlantic Nursery Trade Show (MANTS), and ASTA’s Vegetable & Flower Seed Conference.  Through those meetings, I learned that there are several concerns and issues relating to intellectual property rights that are common among many companies in these industries.  

First, there is real concern over the changing scope of protection over Essentially Derived Varieties (EDVs) under the Plant Variety Protection (PVP) and Plant Breeder’s Rights (PBR) laws throughout the world.  The UPOV organization is currently looking into how EDVs should be explained in the explanatory notes to the UPOV convention, and many companies in the agriculture/horticulture space are concerned that the explanatory notes will narrow the scope of EDVs significantly.  This could have the effect of seriously devaluing PVP rights by making it far easier for a third party to use a protected variety to make a competing “new” variety that is nearly identical to the original variety, which could in turn stymy innovation.  This issue will require close attention by IP practitioners working in the agriculture/horticulture space.  

Second, there is continued discussion in the industry over the disparate ways that biological deposits are used under the various variety protection systems in the U.S.  For instance, in the U.S., biological deposits are generally required for utility patents for new varieties, are required only for seed derived varieties under the PVP system, and are not required at all for plant patents.  And, when deposits are made, there is also disparity in how those deposits are distributed when a party makes a request: for PVPs, the deposit is not made available to the public until after the PVP rights have expired, while deposits for patents are distributed to third party requesters once the patent has issued.  This last point means that a competitor could obtain a sample of a newly-protected variety despite the fact that the competitor’s use of the variety for breeding, for instance, may be prohibited by the patent.  This creates some concern of variety owners over what use could be made of biological samples they are depositing, which in turn requires breeders to consider the deposit issue when weighing the pros and cons of the various variety protection options in the U.S.

Lastly, infringement through online marketplaces, such as Amazon, eBay, Etsy, and Facebook Marketplace, of patents and trademarks covering protected varieties has become a major thorn in the side of the agriculture and horticulture industries.  Though each individual instance of online infringement that is taking place is often relatively small in scale, the cumulative effect of it can be quite large as the number of infringers increases.  Because of this, it has become necessary for these industries to address the online enforcement issues through new tools and techniques, and these industries are doing just that, both at the individual company level and on the overall industry level.  Hopefully the online enforcement tools and techniques that are being developed and implemented will help to curtail online infringement activities in the near future.