This is an Organic Seed Resource Guide article.

Can I grow seed of a patented or PVP'd variety?

Some plant varieties are protected as “intellectual property” through various types of patents or plant variety protections (PVP's). Use or propagation of a plant under a patent may be restricted by the patent owner. Varieties held under a PVP may be propogated for use in plant breeding by others or on-farm use, but rights of commercialization of the variety is held by the PVP owner. Varieties not under such protection are held in the public domain and may be used, propagated, and marketed without restrictions.

Asexually propagated plants can be protected with a plant patent. The patent holder has the “right to exclude” (without permission) others from reproducing the protected material. Plant patents are used primarily for perennial fruits and ornamentals.

For sexually propagated (seed-propagated) plant varieties, plant variety protection (PVP) and utility patents are the types of intellectual property protection used, although these types of patents may be used in certain cases for asexually propagated species as well. PVP certificates are issued by the USDA Plant Variety Protection Office, and utility patents are issued by the U.S. Patent and Trademark Office.

Field of Hybrid Redbor Kale at Nash's Produce, Sequim, WA. Photo credit: Micaela Colley, Organic Seed Alliance

What is PVP?

The Plant Variety Protection Act of 1970 established PVP certificates to protect the interest of breeders of “sexually reproduced” plants, that is, plants grown from seeds. In its present form, it allows the developer of a new variety to exclude others from reproducing and selling the protected variety without permission. Varieties are protected for 20 years.

Pure lines, open-pollinated populations, inbreds used to make hybrids, F1 hybrids, and clones (in the case of potatoes) can be plant variety protected. The variety must meet standards of novelty, uniformity, and distinctiveness, and cannot be essentially derived from another plant variety protected variety.

Under the Act’s research exemption, the holder of a PVP certificate cannot exclude others from using protected material for research, and under the Act’s farmers’ exemption, farmers may save seed for their own use after purchasing a protected variety.

For more information see the following resources:

• The USDA Plant Variety Protection Office
• A database of varieties for which PVP certificates have been sought.  The database can be used to determine whether protection was obtained for a variety and when that protection expires.

What is a utility patent?

Recent court decisions in the United States have expanded the scope of traditional utility patents to cover living organisms, including plants, plant parts, and plant-breeding processes. To be granted a utility patent, the variety, trait, or procedure must be novel, useful, and non-obvious to one skilled in the art of plant breeding.

The utility patent holder can exclude others from propagating, growing, using, or selling the protected material, without permission, for 17 to 20 years. There are no research or farmers’ exemptions, so protected material cannot be used without permission in a breeding program or saved for personal use by farmers.

The U.S. Patent and Trademark Office home page provides information on the application procedure, as well as links to utility patent policy and law, at www.uspto.gov/index.html. A searchable database is available at www.uspto.gov/patft/index.html.

The larger seed companies are using utility patents to protect purelines, inbreds used to make hybrids, F1 hybrids, and traits in general. Some recently granted trait patents are very broad in that they claim all varieties that possess the trait in question.

How do I know if a variety is protected?

In all but a few cases, all contemporary varieties developed by private breeders are protected, and most public varieties are protected as well. There are several ways to determine whether a variety is protected by a patent and, if so, when that protection ends. The original seed container may have a tag indicating that the variety is protected, or the catalog description may indicate its status. Also, you can check with the originating seed company or search the patent databases.

What is an MTA?

When you ask for noncommercial material from a plant breeder or germplasm bank, you may be asked to sign a Material Transfer Agreement (MTA). The MTA may restrict what you may do with the material. Common restrictions are that the material may be used only for trialing purposes, or that you cannot distribute the material to a third party. Nearly all public and private plant breeders use MTAs.

References

• Plant Variety Protection Office [Online]. Agricultural Marketing Service, United States Department of Agriculture. Washington, DC. Available at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=Templa... (verified 22 Dec 2008).
• Plant Variety Protected Crops [Online]. Agricultural Marketing Service, United States Department of Agriculture. Washington, DC. Available at: http://www.ars-grin.gov/cgi-bin/npgs/html/pvplist.pl (verified 22 Dec 2008).
• United States Patent and Trademark Office [Online]. United States Patent and Trademark Office, Department of Commerce. Alexandria, Virginia. Available at: http://www.uspto.gov/index.html (verified 22 Dec 2008).
• Patent Full Text Database (PatFT) [Online]. United States Patent and Trademark Office, Department of Commerce. Alexandria, Virginia. Available at: http://patft.uspto.gov/ (verified 22 Dec 2008).

This is an eOrganic article and was reviewed for compliance with National Organic Program regulations by members of the eOrganic community. Always check with your organic certification agency before adopting new practices or using new materials. For more information, refer to eOrganic's articles on organic certification.

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