BOX 1 Plant Protection

Over the past quarter of a century, Congress and the courts have greatly strengthened the protection of intellectual property rights for biological inventions, including plants. Below is a brief history of the rights for plant inventions:

The original Patent Act of 1790 provided no protection for plants or animals, no matter how much intellectual effort had gone into producing a particular variety or breed. Plants and animals were considered to be “products of nature” and thus not patentable.

In 1930 Congress passed the Plant Patent Act, which allowed the granting of “plant patents” for asexually reproduced plants—those that are reproduced by means other than seeds, such as by tissue culture or propagation of cuttings. Asexually reproduced plants, which are genetically identical to their donor plants, include many types of fruit and nut trees and also ornamental plants. The act did not include protection for sexually reproduced plants because at the time it was thought that plants grown from seed could not be guaranteed to be identical to their parents. The act also excluded tuber crops.

Forty years later Congress provided a different sort of protection to sexually reproduced plants other than hybrids with the Plant Variety Protection Act of 1970. By this time it was clear that plants grown from seed could remain true to type from generation to generation, so the act allowed the U.S. Department of Agriculture to safeguard new varieties that were stable, distinct, and uniform by issuing Plant Variety Protection Certificates. The protection offered by these certificates, however, was relatively weak. Only exact copies were covered, so a breeder could introduce minor cosmetic changes in a variety and get a separate certificate. Furthermore, the owner of a protected variety could not prevent other breeders from

rulings by the U.S. Patent and Trademark Office (PTO) have greatly strengthened and broadened the intellectual property protections available for biological inventions. In the 1980s, for example, it first became possible to obtain a utility patent—the strongest patent in terms of the level of protection it offers—on new types of plants or animals, whether created by traditional breeding practices or genetic engineering. The increased protection for intellectual property may have made industry less likely to keep some inventions as trade secrets, but it has also given inventors greater power to control access to inventions that are made public.

The third factor is a new attitude toward patenting federally funded research, produced by passage of the Bayh-Dole and Stevenson-Wydler Acts in 1980 and the 1986 Technology Transfer Act. Up through the 1970s, although there were exceptions, research performed with money from the federal government was usually put into the public domain. Now, however, universities, government agencies, and the researchers working at those places are encouraged, even expected, to file for patents on commercially valuable inventions as part of a push to



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