Reflections on Intellectual Property and Plant Breeding since 1924June 13, 2024

MVS is celebrating 100 years of creating, protecting and enforcing Intellectual Property (IP) Rights for our clients.    We share this milestone with another organization that acts as an  advocate for strong IP rights, the International Seed Federation.  Founded in 1924 as well, the International Seed Federation’s mission is to “To create the best environment for the global movement of seed and promote plant breeding and innovation in seed.”  Evolving together for 100 years, the landscape of plant breeding and IP stand poised to help incentivize the development of new plant varieties around the world.  And it couldn’t come at a more critical time.   

It is a well-accepted statistic that by 2050, the world population will reach 9.7 billion, requiring double the amount of food currently produced.  This will require global ag output to increase by as much as 70%.  According to the World Intellectual Property Organization, climate change and dwindling land available for crop production will require that 90% of this increase come from technological advances in farming practices and higher yields.

History shows that large advances in yields can be obtained through traditional plant breeding, maximizing the genetic potential already within our plants.   In the 1030s one farmer fed 4 people, in the 1970s a single farmer fed 73 people and in 2000 one farmer fed 155 people.  These advances have occurred not just from breeders creating different and unique combinations of genes present in a single plant’s germplasm, but also from maximizing gene combinations via combinations of two specific parental plant lines, and, from creating additional genetic variability which can be harvested.    

In the 1920s and 30s, farmers began to harness the genetic advantages of hybrid vigor, a hybrid, created from a cross from two parental lines which were genetically identical at every locus,  The resulting F1 was more vigorous and higher yielding due to heterosis.  In the 40s mutation breeding allowed us to increase the diversity available in germplasm by increasing genetic variation from 1000 to 1 million-fold over the background mutation rate, resulting in more than 3,200 new commercial varieties.

With the 80’s came new genetic modification methods that enabled the insertion of specific genes from different species allowing for improved composition (such as healthier oils produced from plants), herbicide tolerance, insect resistance, and improved tolerance to stress conditions.  Genetic modification has been improved in recent years with genome editing, allowing precision insertion and deletion of genetic material into the genome of plants.  Today we are also seeing advances with bioinformatics to provide data driven selection, and even with artificial intelligence used to select plants for crossing.

Over the years as plant breeding evolved, Congress has helped plant breeders efforts by enacting legislation for legal protections for the work of breeders. In 1930 Congress passed the Plant Patent Statute, providing for a special form of utility patent protection for asexually produced plants.  In 1960 the US enacted its version of the Union for the International Protection of Plant Varieties legislation, the Plant Variety Protection Act.  Administered by the USDA, the legislation provides for the issuance of plant variety protection certificates, which allow for patent-like protection of sexually produced as well as asexually produced plant varieties.   In a watershed moment, in 1985, the Ex Parte Hibberd decision (227 USPQ 443 (Bd. App. & Int., 1985)), was issued, where the Board of Patent Appeals and Interferences held that utility patents can be properly issued for seed produced plant varieties.  Later the U.S. Supreme Court issued its landmark decision,  JEM in 2001, J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001), affirming that BOTH the PVP and utility patent system appropriately co-exist and are Congressionally intended parts of our Intellectual Property System.  A case I was honored to participate in. 

Ex Parte Hibberd offers a unique opportunity to investigate the value of IP protection in incentivizing plant varieties.  With the Board’s decision, affirming the actions of the uspto, the floodgates opened for protection of any plant variety that could be enabled by a seed deposit.  Indeed by 2001 when the Supreme Court considered JEM, over 1800 utility patents had been issued for plant varieties.  After  Ex Parte Hibberd, private company investment in plant breeding skyrocketed with 2 and a half times increase in research dollars, with a similar doubling in the number of new plant varieties developed and introduced.  As foreseen by our founding fathers, IP rights truly “promote the progress of science and the useful arts” See, Article I section 8 of US Constitution.    

The advancement of new plant varieties to help stave off the impending food crisis requires continued diligence by those advocating for plants and seeds.  For over 100 years the ISF and MVS have been doing just that.

At MVS we have prosecuted over 1100 plant and plant-related technology patent applications  since 1995.  We were recognized on the Plant Patent Toteboard as the firm with the highest number of plant patents issued in 2022 in the United States.

We celebrate 100 years of advocating for plant breeders!

Heidi Sease Nebel is a Partner, Patent Attorney and Chair of the Chemical and Biotechnology Practice Group at McKee, Voorhees & Sease, PLC. She is also Vice Chair of the Patent Public Advisory Committee (PPAC).  For additional information please visit www.ipmvs.com.