GM crops are NOT the only patented seeds. Her is some history of seed patents.
The Plant Patent Act of 1930 (“the PPA”)
Congress first considered expanding patent protection to include plants in 1892, but it did not enact the PPA until May 1930. Supported by celebrated plant breeders like Luther Burbank and inventors like Thomas Edison, the PPA relies on an analogy between new breeder-produced varieties and new mechanical, electrical, or chemical inventions. According to the committee reports Congress prepared in support of the PPA, “a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man, and such discoveries can only be made available to the public by encouraging those who own the single specimen to reproduce it asexually and thus create an adequate supply.” Of course, it’s fair to ask – given the appeal of the analogy between a newly bred plant variety and a newy invented plough or mill – why hadn’t plant breeders simply applied for regular utility patents (before Congress passed the PPA)?
Two things hampered horticulturalists from getting utility patents on new plant varieties. First, the Patent Office at the time viewed plants, even newly invented varieties that would not exist but for human intervention, as unpatentable products of nature. In other words, so far as the Patent Office was concerned, there as no difference between stumbling on a new plant in the woods and developing a new plant in a breeding program. Second, plant breeders had trouble providing written disclosures that were detailed enough to satisfy the Patent Act requirements for utility patents. (To get a utility patent, one must enable others in the relevant art to make and use the invention to which you claim an exclusive right. This disclosure, which teaches other artisans in the field, is the public’s side of patent law’s basic bargain, in exchange for which the inventor gets a time-limited right to exclude others. And this disclosure obligation continues today.)
Congress solved both of these problems with the PPA, by creating a new kind of patent called a “plant patent,” different from a utility patent. Congress expressly made new plant varieties patentable, in language now codified at 35 U.S.C. § 161: “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.” (The courts have construed the word “plant” in the PPA to have its common meaning, rather than a strict scientific meaning. Thus, for example, the courts decided that bacteria are not eligible for plant patent protection under § 161. In re Arzberger, 112 F.2d 834 (CCPA 1940).) Congress also ensured that the disclosure requirement for a plant patent would not be so demanding as to prevent protection, in language now codified at 35 U.S.C. § 162: “No plant patent shall be declared invalid for noncompliance with [the disclosure requirement for utility patents] if the description is as complete as is reasonably possible.” A plant patent gives its owner the “the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.” 35 U.S.C. § 163. In short, a plant patent covers a single new plant and its asexually reproduced offspring.
The PPA “was the first legislation anywhere in the world to grant patent rights to plant breeders.” Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1563 (Fed. Cir. 1995). It’s important to recognize, however, that the PPA’s limit to asexually reproduced copies of the original parent plant is a serious one. PPA protection does not give the patentee the right to prevent someone from cultivating a similar variety on his or her own. Nor does it pertain to plants reproduced by seeds, or seeds themselves. Indeed, according to the congressional reports supporting the PPA, the patented plants “must be asexually reproduced in order to have their identity preserved”; “seedlings … would not preserve the character of the individual.” Requiring asexual reproduction also helps to prove that the claimaint has actually developed a new variety “by separating variations resulting from fluctuations in environmental conditions from true plant variations.” Imazio Nursery, 69 F.3d at 1566.
The Plant Variety Protection Act of 1970 (“the PVPA”)
A crop seed company, even after the PPA’s enactment, could not stop others from saving crop seed and planting in the next season. As Professor Keith Aoki (UC Davis) noted in a recent article, “[t]he seed industry wanted explicit patent rights in sexually reproduced varieties without any inquiry into seed ‘quality,’” i.e., any assessment whether the new seed variety would produce better plants than existing varieties. Weeds, Seeds & Deeds: Recent Skirmishes in the Seed Wars, 11 Cardozo J. Int’l & Comp. L. 247, 284 (2003).
Congress created a patent-like system for seed-reproduced plants in 1970, with the enactment of the PVPA. This statute is not part of the Patent Act. Instead, it creates a Plant Variety Protection Office within the Department of Agriculture. (The Patent Office is in the Department of Commerce.) A successful applicant receives a plant variety protection certificate, not a patent. Specifically, “[t]he breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety … shall be entitled to plant variety protection for the variety, subject to the conditions and requirements of this chapter, if the variety is” new, distinct, uniform, and stable. 7 U.S.C. § 2402(a). The certificate gives its owner the right “to exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom.” 7 U.S.C. § 2483(a)(1). But this right to exclude has significant exceptions – exceptions that a crop seed company would find especially annoying. The PVPA-based power to exclude another from “reproducing” the covered seed does not bar a farmer from saving seed from one crop and planting it at a later time. 7 U.S.C. § 2543. And competing seed companies can conduct research on a PVPA-protected variety: “The use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute an infringement of the protection provided under this chapter.” 7 U.S.C. § 2544. Neither seed-saving, nor research use, would be permitted as a matter of course under the Patent Act, with a regular utility patent. As a result, utility patent protection remained desirable to the seed companies, even after Congress enacted the PVPA.