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On Dec. 20, 2018, President Donald Trump signed into law the Agricultural Improvement Act of 2018, commonly known as the Farm Bill 2018. The Farm Bill 2018 is a large, complex bill that contains sections and provisions that impact many aspects of the law. Buried within the bill is Section 10108, which makes certain minor amendments to the text of the Plant Variety Protection Act. Though this section is very brief and the amendments to the text of the PVPA are minimal, the impact of those amendments is quite important to the horticulture industry as it amends the PVPA to now include intellectual property protection for asexually reproduced plant varieties.

The U.S. has historically divided intellectual property protection for new plant varieties into two distinct regimes, depending on how the plant is propagated. IP protection for asexually reproduced plant varieties (e.g., reproduced by budding or vegetative cuttings) existed only in the form of plant patents, which issue from the U.S. Patent and Trademark Office. On the other hand, plants that are propagated sexually (i.e., through seeds) or through tubers are protected via a Plant Variety Protection certificate under the PVPA, which is issued by the U.S. Department of Agriculture. Thus, a breeder of a new plant variety would generally be entitled to one type of protection or the other depending on how the plant is reproduced. With the passing of the Farm Bill 2018, PVP protection is now extended to plants that are reproduced asexually through vegetative material (other than seed), which opens a new avenue of IP protection for inventors/breeders of new plant varieties that can only be reproduced asexually.

More specifically, the Agricultural Improvement Act of 2018 amends the PVPA at four distinct sections to incorporate protection of asexually reproduced plants.

  • Section 41(a) of the PVPA (7 U.S.C. § 2401(a)) has been amended to add a definition for “asexually reproduced,” which means a plant “produced by a method of plant propagation using vegetative material (other than seed) from a single parent, including cuttings, grafting, tissue culture, and propagation by root division.”
  • Section 42(a) of the PVPA (7 U.S.C. § 2402(a)) has been amended to add “asexually reproduced” plants to the list of the types of plants that are entitled to protection.
  • Section 111(a)(3) of the PVPA (7 U.S.C. § 2541(a)(3)) has been amended to add “asexually multiply[ing]” a plant as an act of infringement.
  • And Section 128(a) of the PVPA (7 U.S.C. § 2568(a)) has been amended to “asexually reproducible” plant material in prohibited acts of false marking.

These four relatively minor changes have the combined impact of extending PVP protection to asexually reproduced plant varieties, giving breeders of asexually reproduced varieties an entirely new avenue of IP protection to explore.

Though IP protection for new asexually reproduced plant varieties already existed in the form of plant patents, plant patents and PVP protection provide different scopes of protection, making this new avenue of protection potentially very useful for breeders. For example, while both plant patents and PVP protection provide the holder exclusive rights over the specific new plant variety that was developed, PVP protection also provides the holder rights to exclude others from using the protected variety to create hybrids and essentially derived varieties. Plant patents offer no such protection over hybrids and essentially derived varieties, so PVP protection provides certain advantages in this regard.

Further, historically, the effectiveness and usefulness of PVP protection was reduced to some extent by certain exemptions to the protection that are included in the PVPA. For example, the so called “farmers’ exemption” allows farmers to save seed from one year to use for replanting on their land the following year. This severely weakened PVP protection because a farmer would only need to buy enough seed to plant his/her fields one year, and then in all future years the farmer could simply save seed for replanting, thus avoiding the need to ever purchase seed from the breeder again. Importantly, this weakness does not appear to come into play for asexually reproduced plants because this portion of the law was not amended in the Agricultural Improvement Act of 2018. Since seeds are not used to propagate asexually reproduced varieties, the farmers’ exemption is irrelevant to these types of plants. Thus, PVP protection for asexually reproduced varieties provides breeders with the improved protections available under the PVPA without some of the limiting effects of this law.

It should also be noted that the requirements for obtaining plant patents and PVP protection differ slightly. For example, filing for a plant patent requires a detailed botanical description of the plant, whereas filing for PVP protection requires field and comparative test data, making the PVP application somewhat more onerous than a plant patent application. Thus, breeders should consider the type of information and data that is needed for the application process when making a decision on what type(s) of protection to pursue.

PVP protection also requires a seed or tissue culture deposit, whereas plant patents do not have such a requirement. While a seed deposit for a sexually reproduced variety is a relatively straightforward and inexpensive process, tissue culture deposits for asexually reproduced plants are more expensive due to the equipment and technology required for preserving plant tissue that can be used to reproduce the protected variety. There are currently few companies in the United States that meet the needs of plant tissue culture deposits. This should also be taken into account when considering the type of protection to pursue for a particular asexually reproduced variety.

In addition, the governmental fees for each application differ. The filing fees for a PVP application are higher than those for a plant patent application but additional fees may be required to obtain a plant patent from the USPTO. This is yet another factor to consider when deciding what protection to pursue.

The Agricultural Improvement Act of 2018 provides breeders of asexually propagated plants new avenues of IP protection to consider. Because the scope of plant patent and PVP protections differ in certain regards, and the requirements for obtaining such protections also differ, breeders can now choose to pursue one form of protection or another, depending on their needs, or can choose to pursue both forms of protection to form a stronger IP “fence” around their novel asexually reproduced plant variety.

This article originally appeared in Law360 on January 8, 2019

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