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Patents Corner
Protecting Plant Varieties
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by Becky Mahurin
Three forms of protection are available for the protection of plant varieties. These are plant patent protection, plant variety protection and utility patenting.
Prior to 1930 no protection mechanism existed for plant. At this time plant patenting laws were passed which allowed patenting of asexually reproduced plants such as fruit trees, flowering trees, grapes and some vegetables. The length of this protection is now 20 years from patent filing. This provides the owner of the patent the right to exclude others from making or selling this product. The process was established so as to encourage more research into better varieties of the above mentioned plants.
In 1970 the Plant Variety Protection Act was passed to provide essentially equivalent protection for sexually reproduced plants - those which produce seed. It was determined that particularly for farm crops such as grains, it was, again, necessary to provide incentive to researchers to risk several years and many dollars to develop better producing crops, ones which were herbicide resistant and which had desirable food traits. PVP can be obtained for any variety which is distinct from previous lines, regardless of the importance of this trait, if the traits are uniform and if these traits remain stable when reproduced. Seeds of the protected variety must be deposited with a repository and are not accessible by others. Plant Variety Protection differs in several ways from patenting. First, it is a much less expensive and more easily executed process. Protection is for 18 years. Perhaps more important to the holder of a variety which is protected by PVP is that the protection is not as encompassing as patenting. Of importance under PVP, a farmer is allowed to save seed from year to year and either replant it himself or to sell it to a neighbor. This exemption does not allow a farmer to market the seed by its protected variety name or to advertise such unnamed seed for sale. This "farmer's exemption", however, has been the source of numerous law suits.
The third form of protection is that of utility patenting. This form of patent protection is available for biotechnology processes, genes, seeds, plant parts, cultivars and hybrids. Deposits of seed for utility patents must be accessible to the public as soon as the patent issues. This type of protection has become more widely utilized in the age of biotechnology and provides protection for 20 years from filing date.
Each of these forms of protection are valid ways in which we may protect the "fruits" of our research. If a plant variety looks to be highly commercializable it is to our advantage to consider patenting in lieu of or in addition to PVP such that the "farmer exception" does not become an issue.
Should you have questions regarding protection of a plant variety, please contact me at 994-7868.
Becky Mahurin
Director of the Technology Transfer Office at MSU
© 2000 Montana State University-Bozeman
Discovery February/March 1997
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