Over the last half-century, we’ve seen a huge rise in the ways that technology plays a part in our daily lives. We now hold incredibly powerful computers in our hands everyday which allow us to communicate across enormous distances. For the companies creating these ever-improving devices, protecting their ideas and designs is vital to their success.
Similar advances, however, have also had an immense impact on the agricultural industry and the way we grow plants, and produce food, around the world. For farmers and the industry, like companies producing new technologies and products, it’s crucial for them to protect their rights ownership of the new and different hybrid crops that they grow each year.
“We live in an area that is certainly industrial but quite a bit of it is very agricultural,” said Domenica Hartman from Hartman Global - Intellectual Property Law.
“Plants can be protected by utility patents, which covers the utility of, for example, the genetically modified plant or seed, and plant patents,” said Hartman. “For instance, utility comes into play when you hybridize two different seeds and you now produce, let’s say, a mold resistant or frost resistant corn.”
“Plant protection is kind of a very small niche. I haven’t looked at the statistics recently but the last I saw it was about 1% of all patents are plant patents.”
Plant patents differ from utility patents in that they are directed towards plants that are reproduced asexually in a cultivated environment. If a new plant was found in the wild it can not be patented because it was not produced in that cultivated environment.
“You’ve got to have a cultivated environment,” said Hartman. “So you’ve got to do something like graft or take clippings from that but it has to be done by asexual reproduction. They want that requirement for asexual reproduction because you’ve got to make sure this new plant is in fact stable.”
Where these patents and protections really come into play, whether it’s plant patents or utility patents, is when farmers are using hybridized, genetically modified seeds or bulbs that are being grown as a commodity.
“Where there’s an issue is, let’s say, Farmer A uses some seeds or bulbs that are covered by patents and they’ve paid one of the many seeds distributors for them. Now his seeds, through pollination, carried by the wind, or during the harvesting process, migrates over into Farmer B’s land.”
“Farmer B may be a truly organic farmer and he may not want this hybridized seed in his field, and he may be hurt by that. Also, the Monsanto’s of the world, may say, ‘Hey, Farmer B, you’re using our seeds here!’ Even though Farmer B doesn’t want them, the seeds are giving him better mold resistance overall and it’s giving him a better yield when he harvests those crops. Farmer B is inadvertently infringing on Farmer A.”
When it comes to litigating the infringement of a patent, very little weight is given to intent when the review process is being carried out.
“They’re going to look, when it comes to infringement, to say ‘black or white,’” explained Hartman. “Is there, in fact, the protected plants in your field? So now, Farmer B is saying ‘I didn’t ask for this.’ The seed company is going to say, ‘You’re deriving better results because of the presence of our plants so you owe us some money.’”
“That’s pretty much the push and pull of patents in this industry. You can see how this can become a huge ordeal.”
Just like any other industry, farmers and large agricultural companies want to be more efficient, more cost effective, and produce a higher yield, which means they are constantly producing new and different, hybrid and genetically modified seeds. However, what is good for one farmer isn’t always good for his neighbor and this can ultimately lead to predicaments, such as has been outlined between Farmers A and B.
Just like for any device or apparatus that can be protected under patents, seeds and plants must be new, they must be different, and it cannot be something obvious.
“With the advances in technology it’s escalated like most everything,” Hartman said. “With the cultivation and hybridization techniques, and the DNA/RNA science behind the plants, it has just grown a great deal.”
“It makes for an interesting conundrum. Most people and industries aren’t exposed to this type of patent infringement whereas because of the farming environment, where the wind can blow or a bird can pick up a seed and drop it, you can’t completely enclose it. That’s what makes this, in the news, so much more interesting and passionate.”
If you’re a business owner, an inventor, or an entrepreneur, contact Hartman Global IP Law at, www.hartmanglobal-ip.com, today to see how you can keep your ideas and creations protected!
