Are Utility Patents Tying Up Innovation With Litigation?

Calibrachoa ‘Can-Can Bumblebee Pink’ (Ball FloraPlant) is a good example of what can be accomplished when breeders work together on licensing genetics for breeding.

Bringing new varieties to market involves tremendous investments of time, money, and resources. Even with modern breeding practices and the shift toward vegetative breeding, the process still takes about 10 years on average to bring a successful series to market.

After all of that work, breeders want to see a return on their investment, and they should. That’s why the Plant Patent Act of 1930 protects asexually propagated plants from being illegally propagated, and for plants that are patented under this act, it’s why you pay a royalty for cuttings or liners. It’s also why, if you were to take cuttings from patented plants and illegally propagate them for sale, you would end up serving time in prison and paying hefty fines.

But as you read in “Plant Patent Law: Protecting the Variety Pipeline,” the shift toward more utility patents is concerning. It tells us that breeders are looking for more protection for their work, either because they don’t feel their innovations are being respected or because they want to corner the market on a certain trait, and control who uses it. But more utility patents in the name of competition and innovation, are actually limiting competition and innovation.

So why does this matter to you, as a grower or grower-retailer? Because the increasing cost for breeders to protect their inventions and discoveries in plant genetics is part of the increasing cost of doing business.

The more work breeders have to do to ensure they’re not breeding with patented material; the more counsel they have to seek and fees they have to pay to apply for and maintain utility patents for a new invention or broad trait they feel they need to protect; the more licensing agreements they need to police; the more litigation they have to pursue for license violations — it all adds up to more cost. And all of that cost gets filtered down somehow, and increases your cost of doing business.

“In the future, [our industry] might have more lawyers employed than we have breeders,” says Matthias Redlefsen, Managing Director of Ernst Benary & Co.

Currently there’s no easy way of knowing what is under patent protection, or what applications are being processed. That underlying uncertainty or insecurity about what can and cannot be used can hinder and even stifle innovation, so it would be helpful to have a clearinghouse where the rights to breed with patented genetics can be offered up and negotiated. The breeding world has already showed that it’s interested in this type of negotiation considering that patent licensing between breeding companies has increased in the past year

Ornamental breeders should look at the possibilities of creating a licensing platform similar to ILP Vegetable. It’s not just one big patent pool that anyone can draw from at any time — there is a process involved. But you don’t have to be a patent holder to be part of it, so it opens up the possibilities not just to large breeding companies who have something to trade, but also to smaller breeding companies and independent breeders who need a diversity of germplasm. Allowing better access to patented traits would drive innovation, increasing the possibilities for breeders to discover new varieties, and perhaps even new species and genera.

Our industry is small and friendly, so we should be able to come up with a compromise. And just imagine the possibilities when we do.

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