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N I N E Intellectual Property Rights A LTHOUGH INTELLECTUAL PROPERTY rights (IPR) are mentioned specifically in the U.S. Constitution, there was widespread agreement in the late nineteenth century that they were inapplicable to plants and animals. Bacteria and other microorganisms were considered patentable, but there was a general agreement that higher plants and their component parts should not be subject to utility patents. This consensus was based on the four requirements for a utility patent: novelty, non-obviousness, utility, and specification.1 In legal terms, “novelty” is usually taken to mean a novel composition of matter. Thus discoveries are normally not patentable as they exist already and are merely made known by the discoverer. In practice, the demonstration of novelty is usually met by noting that the object in question has not been patented before, is not in general use already, and is not easily produced by someone already skilled in that particular art.“Non-obviousness” means that the thing to be patented requires some inventive step beyond what skilled practitioners usually do.“Utility” is broadly interpreted as the demonstration of some public benefit to be had from the invention. Finally, “specification” involves a written description of the item that could be employed by anyone knowledgeable in the field to create the object to be patented. Plant materials were excluded from utility patents on several grounds, including (1) the impossibility of providing an adequate specification, (2) the lack of invention (i.e., the claim that novel plant materials are essentially a discovery), and (3) the lack of novelty (i.e., anyone skilled in the art could N I N E 138 produce the item in question).As a result, private investment in plant improvement was relatively unprofitable throughout the nineteenth century and much of the twentieth. After all, since seeds are self-replicating, they can be copied and freely grown by farmers, other seed companies, or public-sector research institutions such as LGUs. Indeed, all three of these groups copied and grew seeds well into the twentieth century; therefore, seed prices remained only slightly above grain prices (Kloppenburg 1988). Hybrids, developed in the 1930s, presented a partial solution to the patent problem for seed companies by creating the biological equivalent of a patent. Since the progeny of a hybrid plant had little or no yield when planted, farmers had to return to the marketplace each year for more seed. And because seeds were a relatively small portion of the total cost of farming, they were willing to pay the higher price for the benefits of hybrids, including improved yield. The hybrid seed business soon boomed, although for technical reasons it was limited largely to hybrid corn. The Plant Patent Act (PPA) of 1930 (U.S. Code 35 [1930], §§ 161–64), championed by Luther Burbank and of particular interest to flower and fruit growers, was the first attempt to provide patent protection for plant matter. PPA permitted the patenting of clonally reproduced plants (i.e., reproduced from cuttings and tubers). Unlike the more stringent requirements for utility patents, filers of plant patents did not have to show how to produce the speci fic variety. They only needed to file a description that was “as complete as possible.” Moreover, since creating a plant de novo from other matter was and remains impossible, people and companies seeking plant patents were required to submit a sample to a public repository. Finally, the scope of the claim was limited to the variety of plant for which the patent was sought. In addition, plants produced outside the United States using the same plant matter could be imported without infringing the rights of the patent holder. In sum, PPA provided certain protections to “inventors,” but it was more limited in scope than the laws protecting utility patents. For the next forty years there were few changes in IPR concerning plants. Then, in response to considerable pressure from the seed industry, Congress passed the Plant Variety Protection Act (PVPA) (U.S. Code 7 [1970] §§ 2321–2582). The argument for the act was based on the highly debatable notion of “plant breeders’ rights.” In point of fact, by 1970 there were few independent plant breeders in the United States; most were employees either of State Agricultural Experiment Stations or of private seed companies.At the time, most public breeders were opposed to the new law, seeing it as the privatization of a public good (Fejer 1966). I N T E...


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