A recent item I put together for the Agricultural Biodiversity Weblog (thanks for the link Jeremy) has added to the arguments questioning the value of property rights over plants. “Challenging Plant Patents: the Rose”
The original paper being discussed in the blog post linked above asked the question “Did Plant Patents Create the American Rose?[1]”, and they concluded that:
“Using plant patents as the sole indicator of innovation suggests that the answer is yes…A closer look, however, suggests patents played at best a secondary role, and that U.S. breeders mostly used patents strategically to protect themselves from litigation.”
The blog item (perhaps somewhat unfairly) draws the conclusion from the paper that:
“…there’s evidence that the Plant Patent Act may have served to suppress horticultural innovation rather than stimulate it”
Why is this debate of interest to us? The research is about roses, but the Intellectual Property Rights discussion could apply equally to other plants/crops. In our area this debate becomes even more heated when publicly funded research, and/or development issues are added into the mix.
It’s always useful that we a) take note and learn from these discussions, and b) that we remember the balance needs to be struck between protecting individual rights, and effects on the wider community. The patent system was always supposed to tread this line. There is more than one type of IPR available to plant breeders. In the USA a Plant Patent is just one of three forms of formal protection available for plants from the USPTO, along with PVP and the Utility Patent.
Protection is certainly not a one way street. Plant Patent Rights are time limited and the patented plant variety enters the public domain (with no rights attached) once the patent expires. In addition US Plant Patents allow the protected materials to be used for breeding without the need for permission (or a license) from the patent holder, much like the breeder’s exemption for PVP rights. (See,http://www.ll.georgetown.edu/federal/judicial/fed/opinions/94opinions/94-1450.pdf)%25c2%25a0;. This is NOT true for utility patent rights over plant varieties.
I would like to question the blog item in its comparison to Europe. It was noted that: “European breeders, without the benefit of patents, continued to lead rose innovation” But what about UPOV? This isn’t mentioned…
The tools are just one piece of the overall innovation puzzle, and the innovation puzzle is a complicated one! By raising the awareness of the uses and characteristics of the tools we can help ensure that public sector research navigates this area better. This could mean taking steps to ensure research falls into the public domain, or by using the protections to make outputs available on specific, strategic, development-orientated terms.
The blog post included a great archive photo of the Golden Delicious apple tree (1931) caged to “prevent competitors stealing shoots.” It’s certainly one alternative to formal protection!
[1]Moser, Petra and Rhode, Paul W., Did Plant Patents Create the American Rose? (January 4, 2011). Available at SSRN: http://ssrn.com/abstract=1735015
the CAS-IP blog 
In my view protection of plant patents is very crucial.The main reason is that most patent holders especially in this part of the world_Africa;feel their creativity &innovative efforts are not being taken care of.Previously some institutions of higher learning have inadvertently taken credit for discovery made by individual scholars.As a matter of fact universities have reaped millions and denied patent holders crucial amounts required for further erasearch.It is therefore necessary that plant patents be protected.Josam-
KENYA [E Africa ]
@Josam. Thanks for your comment. Lack of proper attribution seems to be a problem that is alive and kicking whatever the protection mechanism. It’s my understanding that patents on plant varieties aren’t available in Kenya. Are you suggesting they would be more useful for stimulating innovation than other protections?
Kay in Kenya we have what is called protection of new plant varieties.It is my view that whereas other protections are equally important,plant patent protection would be useful for stimulating innovation particularly in agricultural sector.Kenya and Africa’s economies are agric based and therefore any efforts focused in this direction will gain currency.Kay expect more contribution on this.Thanks.
Kay in Kenya we have what is called protection of new plant varieties.It is my view that whereas other protections are equally important,plant patent protection would be useful for stimulating innovation particularly in agricultural sector.Kenya and Africa’s economies are agric based and therefore any efforts focused in this direction will gain currency.Kay expect more contribution on this.Thank you.
Josam to some extend, Kay is right too. For me I think protection to owners/breeders of new plant varieties is already a good step in agri-economies. Still you find a number of countries in Africa are yet to institute this model. I can not blame them either. Plant patents/protection is still a controversial subject which I would advise African countries to first build human capacity in this area and then engage in debates to built adequate understanding of repercussions to such as food security and other possible implications before istituting this model of protection.
On the subject as to wether bred plants are patentable or not, my take is that it depends. But whether they deserve intellectual property/asset protection, it is affirmative YES. It takes intellect to breed . In summary whichever way you look at the form of protection, the aim is to give incentive to those who have dedicated their time and intellect to generate for society the new thing that is not obvious to aperson skilled in the art. As long as they get it whether by remuneration, recognition or whatever else that satisfies/energises them then it is ok.
Antony M. Kenya, East Africa.
Thank you both for your contributions. Often in the development press one reads only about the ills of IPRs in agriculture – there is of course more than one side to the story which is important to highlight
I wanted to react to Mr. Jasam Nandwa understanind of patenting plants. First of all, plants are not like chemicals, or songs which need to be patented if I don’t listen to a song I can sleep when am satisfied. Patenting plants means we are going to have short leaved plants or seeds ( keeping in mind the problem of terminator seeds in circulation after patenting ) for the patent owner to benefit from his patent. African we rely on agriculture starting from the farmer, middlemen and then to the marketers. Per now we can’t enjoy what we used to enjoy the real traditional foods and people are suffering with hybrids containing seeds that can not be replanted again. let us ask our selves what will happen if the patentee are given their rights how will the package of Genetic seeds be ascaped? what i have realised is that, some of us think of death and we have failed to plan as well as protecting the new generation.
If patenting let it be to some factors like songs not seeds or food and also resist from being drived by globalisation and aim at food sovereignty safeness of our nation and ecosystem before we fall into that ditch.
Gonzaga,thank you for making your worthy contribution on this.We need to engage further in order to come up with a balanced conclusion.May I request further contributions from others and even from you Gonzaga .Thanks a lot.