More and 

Better 

Choices for 

Farmers: 

Promoting Fair 

Competition and 

Innovation in Seeds 

and Other 

Agricultural Inputs

A report directed by President

Biden’s Executive Order 

Number 14036: “Promoting 

Competition in America’s 

Economy”

March 2023
This report was prepared by the U.S. Department of Agriculture's Agricultural 

Marketing Service in consultation with relevant offices, agencies, and teams at

USDA, as well as the Director of the United States Patent and Trademark Office 

and her team and other Federal partners. This collaboration was led by AMS 

academic cooperators Dr. Julie Dawson and Ms. Paulina Jenney of the 

University of Wisconsin-Madison, under the direction of Senior Advisor for Fair 

and Competitive Markets Mr. Andy Green. Its findings are comprehensively 

informed by the public input under a Request for Information issued in March 

2022 as well as listening sessions, meetings, and other forms of consultation 

with farmers, seed businesses and trade associations, plant scientists, patent 

and competition experts, and other stakeholders. This report represents our 

best efforts, to date, to grapple with certain longstanding challenges associated 

with promoting competition and protecting intellectual property in relation to 

agriculture. USDA invites and encourages all stakeholders to continue the 

dialogue with us and with all our Federal partners to promote vibrant

competition, a robust and reliable intellectual property system, and a 

continuing respect for science across all Federal policymaking. 
March 2023 / Page 3 of 86

Executive Summary

A well-functioning economy depends on businesses competing based on the merits of their 

products, including price, innovation, quality, privacy, and diversity. For years, American 

farmers and independent seed businesses have voiced concerns to the USDA about 

concentration and the consolidation of market power in agriculture, including in seeds and 

other agricultural inputs, and the resulting decline in healthy competition.1 Competition in 

food and agricultural markets promotes the types of diversity farmers need to thrive: a 

diversity of choices that respond to the particular needs and priorities of farmers; a diversity 

of options to meet changing business, climatic, societal, and scientific needs; and a diversity 

of companies that are committed to the localities and regions they serve and can weather the 

storms and shocks of today and the future. 

In the seed market, promoting fair and vibrant competition involves considerations of

intellectual property (IP) law, antitrust and other fair business practices law, and public 

investment in our food system. These are complex and often confusing areas even for the 

most experienced farmers, plant breeders, small businesses, and others. Partly that flows 

from the nature of current varieties, where, building off of complex biological material, 

American ingenuity has produced incredibly advanced innovations. Adding to the complexity,

business developments arising from multiple decades of mergers and acquisitions have led to 

an increasingly consolidated marketplace with complicated legal relationships among 

companies. Greater transparency, fairness, and investment—facilitated through better 

coordination and communication by government partners—are areas of progress that will 

benefit all in the marketplace. 

To make that happen, on July 9, 2021, President Biden issued a historic Executive Order titled 

“Promoting Competition in the American Economy,”2 which creates a whole-of-government 

approach to competition and includes initiatives across federal agencies to tackle some of 

the most pressing issues across our economy. Among other things, the Executive Order 

directs the Secretary of Agriculture, in consultation with the Under Secretary of Commerce for 

Intellectual Property and Director of the U.S. Patent and Trademark Office, to submit a report

to the Chair of the White House Competition Council on concerns and strategies for ensuring 

“that the intellectual property (IP) system, while incentivizing innovation, does not also 

unnecessarily reduce competition in seed and other input markets beyond that reasonably 

contemplated by the Patent Act.”3 

1. As defined in Federal Register Notice requesting for public comment on “Competition and the Intellectual 

Property System: Seeds and Other Agricultural Inputs,” 87 Fed. Reg. 15198 (March 17, 2022), at 

www.regulations.gov/document/AMS-AMS-22-0025-0001. 

2. Executive Order Number 14036, “Promoting Competition in America’s Economy,” at 

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promotingcompetition-in-the-american-economy/. 

3. See 35 U.S.C. 100 et seq. and 7 U.S.C. 2321 et seq.
March 2023 / Page 4 of 86

As a response to the Executive Order, on March 17, 2022, the USDA-AMS published a request 

for public comments and information that included 25 multi-part questions about 

competition and market power, intellectual property, and other business practices in the 

seed industry that might be affecting the American farmer’s ability to participate in a fair and 

competitive market.4 After a 90-day comment period, we (USDA staff and cooperators) 

collected comments, hosted a public listening forum,5 and heard from an array of interested 

parties to ensure that as many perspectives as possible were represented in this report.6 

Comments and input were diverse, nuanced, and multifaceted. Many commenters agreed 

that a system that fairly protects IP is critical to continued innovation and investment in seed 

systems.7 Because plant breeding takes time and resources, many plant breeders and seed

companies need a return on their investment. At the same time, we heard concerns that the 

current system and practices for protecting and enforcing IP rights for plant innovations may 

not be promoting fair competition. Those concerns broadly fall into several areas. 

First, some commenters expressed concerns about the difficulty in accessing information on 

existing IP rights associated with a particular plant variety. Due to the various IP systems for 

protecting plant-related innovations, a lack of a consolidated source of information was 

noted as a contributing factor. 

Second, several commenters focused on the application of patentability standards on the 

examination of plant-related innovations. To determine whether a claimed invention is novel 

and non-obvious, the USPTO must conduct a thorough search of the existing prior art. For 

plant technologies, this often requires searching numerous non-patent sources, such as 

publicly available scientific literature and datasets. These commenters believe incomplete 

searching has led to patents that covered existing plant varieties, characteristics, and 

methods of breeding. 

Third, several commenters raised concerns with how IP rights for plant-related inventions are 

being used and enforced, noting the growing use of licenses that override research and 

breeding exemptions guaranteed by certain types of IP rights. Some plant breeders expressed 

having difficulty determining whether their ongoing work would infringe upon a newly 

granted IP right. These commenters noted that if faced with a lawsuit, small to mid-sized 

plant breeding programs may be led to discontinue those lines of innovation even if they 

believed they would likely not be found liable in court. 

4. 87 Fed. Reg. 15198 (March 17, 2022), www.regulations.gov/document/AMS-AMS-22-0025-0001.

5. Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs, (Aug. 2022), 

www.zoomgov.com/rec/play/h4r0AJXwFkYRbfUr6zDMELCKte7_77Meo-W1fnl9VrbKFGdr0QIigqAovK4WqxAuiq8HDNkOnTPxXW8.WwQpath9AqKkafH_?continueMode=true.

6. In this report, we use “commenters” to refer to people who submitted public comments, people who 

participated in listening forums, or people who participated in interviews.

7. In this report, when we refer to seed, we also include other planting stock for crops not propagated by seed 

(tubers, bulbs, cuttings, etc.).
March 2023 / Page 5 of 86

Commenters that primarily license IP from larger companies were concerned about the 

effects of consolidation on their choice of products. These commenters described farmer, 

plant breeder, and seed retailers’ increasing dependence on the few companies that control 

most of the IP for seed. They also observed that this dependence is more pronounced for 

farmers, plant breeders, and retailers in commodity crops than in specialty crops. 

Commenters described situations in which companies on whom they are dependent for seed 

or technology could impose contractual terms that seem to extend patent rights beyond the 

scope contemplated by law. Small businesses expressed concern that these companies may 

offer retail incentives that disadvantage competitors, new entrants, farmers, and consumers.

Finally, many commenters called for greater investment in public infrastructure around seed 

systems and plant breeding. This public infrastructure, largely a partnership between the 

states and federal government, involving USDA research locations, Land Grant Universities, 

and State Agricultural Experiment Stations, has long supported fair competition among 

private entities by releasing cultivars that small and mid-sized companies can use, and by 

being a key provider of traits and varieties for underserved crops and geographies. Decades 

of underinvestment have significantly reduced that capacity. With fewer choices, and without 

varieties tailored to local circumstances, farmers may lose potential revenue. In addition, the 

loss of decentralized capacity for variety development and production of seeds and other 

planting stock means that supply chains are vulnerable to disruption. Commenters pointed 

out that increased investments could mitigate climate-related disruptions to food and 

agricultural systems, could encourage new market entrants, and could establish a fairer and 

more competitive market. 

Addressing these concerns is not a straightforward task (see methodological note below). The 

concerns of farmers, businesses, plant breeders, and market participants—those who grow 

the food we eat, as well as the general public—span IP law, antitrust law, and public 

investment in our food system. Moreover, federal authorities that tackle these issues are 

complex and overlapping. Ultimately, the following report defines three key topic areas in 

which the Executive Order’s whole-of-government approach to promoting competition can 

be used to address these challenges: 

1. ensure robust and reliable IP rights that enhance innovation and promote competition

2. ensure that IP owners exercise their rights within the scope of fair competition provided 

by law, and 

3. rebuild critical national infrastructure for variety development and the provision of seed 

and other planting stock to create resilient seed supply chains. 

In each of these sections, we analyze the current situation and make recommendations for 

the U.S. Government to promote fair competition and innovation, focused on actions 

available to the executive branch and leaders of involved federal agencies, including the 

Department of Agriculture (USDA), Patent and Trademark Office (USPTO), the Department of 

Justice (DOJ), and the Federal Trade Commission (FTC). Our goal is to improve fair 

competition in the seed industry, enhance the resiliency of America’s food and agricultural 
March 2023 / Page 6 of 86

supply chains, and provide economic opportunity and choice for America’s agricultural 

communities.

Methodological note. The commentary discussed in this report represents views that existed 

at the time the comments were submitted. Where, in the intervening months, USDA, the 

USPTO, or other agencies, under the Biden Administration, has made a number of 

improvements, we make note of that progress while preserving the commenters’ views. 

Additionally, some comments may represent the commenter’s perspective which may be in 

conflict with others’ views, data, or market understanding. We have preserved the comments 

as presented and provide additional clarification as needed without seeking to conclusively 

evaluate their relationship to existing law, practices, or data in all circumstances. Our 

purpose is simple: the USDA, USPTO, and other Federal partners take seriously the concerns 

of all involved in the seeds and other agricultural input markets and are committed to taking 

a whole-of-government approach to addressing any and all concerns. 

Summary of key recommendations

This is a brief summary of the recommendations given in the report. Detailed, complete 

recommendations are given in specific sections of the full report.

• A voice for farmers and plant breeders. To enhance transparency, reduce confusion,

and otherwise help farmers, small and mid-sized seed businesses, and plant breeders 

successfully navigate a complex seed system, AMS is establishing a Farmer Seed Liaison. 

Among its responsibilities will be to facilitate communication between farmers, plant 

breeders, and relevant agencies that touch on the IP system, more generally coordinate 

implementation of the recommendations described in this report, and otherwise 

promote fair competition in the seed industry. In consultation with the USPTO and 

modeled on AMS’s Transportation Services Division, the Farmer Seed Liaison will 

particularly facilitate engagement and public input into existing public USPTO input 

processes regarding prior art.

• A new partnership between USDA and USPTO. A new Working Group on Competition 

and Intellectual Property will focus on a number of initiatives such as: 1) to explore joint 

USPTO-USDA opportunities for collecting broader stakeholder input from researchers, 

plant breeders, farmers, and others in the seed and agricultural input markets; 2) to 

explore initiatives to enhance the quality of the patent examination process for 

innovations related to agricultural products and processes, including opportunities for 

enhancing prior art search capabilities and providing additional training and guidance to 

patent examiners; 3) to collaborate on initiatives that enhance the transparency of IP 

information for agricultural-related innovations and assess availability and viability of 

patented and off-patented germplasm; and 4) to consider and evaluate new proposals 

for incentivizing and protecting innovation in the seed and agricultural-related space, 

including the addition of research or plant breeders’ exemptions for U.S. utility patents. 

• Enhanced transparency for farmers. Enforce label requirements under the Federal 

Seed Act (FSA), to ensure that farmers have access to all legally required information at 
March 2023 / Page 7 of 86

the earliest opportunity, usually at the time of purchase and no later than the 

commencement of shipment. Additionally, enforce false advertising provisions under the 

FSA to avoid representations that may claim or give the impression that seed brand

names add diversification for a grower when that representation is false or misleading.

Enhance the accessible filing of complaints and tips on potentially unlawful seed 

practices. 

• Interagency coordination to promote fair competition. USDA and USPTO, together 

with the Department of Justice (DOJ) and the FTC, contemplate a number of actions to 

promote fair competition in the seed industry, including 1) expand farmerfairness.gov to 

include seeds and other inputs, 2) assess the impact of seed business consolidation and 

IP on pricing, choice, and availability of adapted varieties and the impact of reduced 

competition on food security, genetic diversity, and regional production capacity, and 3) 

coordinate and consult on actions related to practices in the seed industry that may 

harm competition.

• Investment in innovative and resilient local and regional food systems. Every day 

USDA invests in science and innovation in agriculture. Following the pandemic, USDA has 

already begun pivoting to meet the needs of a more diverse and resilient food system, 

which incorporates equity and respects Indigenous food systems. More can be done to 

create enhanced diversity and resiliency in seeds and other agricultural inputs, including 

1) explore and highlight opportunities where additional funding, if provided, may 

encourage public sector plant breeders to work in crops or regions that are currently 

underserved by the private sector and where innovation is needed for farmer choice and 

resilience, 2) promote broader adoption of IP strategies that enable continued research 

and breeding with commercialized cultivars from federally funded research, 3) 

encourage and strengthen partnerships between public entities, small and mid-sized

businesses, and non-profit organizations, and ongoing outreach and support to 

historically underserved groups, including indigenous peoples who originally stewarded 

and continue to care for important varieties, and 4) explore options to invest in 

education around agriculture, plant breeding, and seed systems at all levels. 
March 2023 / Page 8 of 86

Contents

Executive Summary .................................................................................. 3

Summary of key recommendations .......................................................................................... 6

Introduction............................................................................................10

Glossary..................................................................................................................................... 14

Plant Breeding........................................................................................................................ 14

Crop groups ............................................................................................................................ 15

Plant-related Intellectual Property Rights and Business Practices.................................... 15

1. Intellectual Property in the Seed Industry.................................................18

Patents Are Used Widely Across Crop Markets........................................................................ 20

Plants Pose Unique Challenges for Patent Examination........................................................ 22

Challenges: novelty and non-obviousness ........................................................................... 22

Challenges: disclosure ........................................................................................................... 25

Post–Issuance Proceedings for Challenging Patent Validity .............................................. 26

Continued Innovation as Impacted by Disclosure, Germplasm Accessibility, Research and 

Breeding Exemptions ............................................................................................................... 28

Continued innovation: disclosure ......................................................................................... 28

Continued innovation: germplasm accessibility.................................................................. 29

Continued innovation: research and breeding exemptions................................................ 30

International IP protection for plant varieties ..................................................................... 30

Continued innovation: Access to protected varieties and traits after IP rights expire ...... 34

Enhanced Transparency for a More Level Playing Field ......................................................... 35

Recommendations On Intellectual Property Protections in The Seed Industry ................... 38

2. Competition and Innovation...................................................................41

Increased Prices are Felt Acutely by Independent Small to Mid-Sized Companies .............. 47

Loss of Independent Small to Mid-Sized Companies Raises Concerns about Farmer Choice 

and Access to Independent Product Information................................................................... 48

Potential Loss of Innovation Due to Changing IP Landscape and Reduction of Small to MidSized Businesses....................................................................................................................... 50

Public Availability of Patented Innovations after IP Protection Expires ................................ 53

Patent-holding firms may delay competition after patents have expired......................... 53

Plant breeders encounter difficulty accessing off-patent seed from public repositories . 54

Biotechnology regulation may delay commercialization of new products and generics. 55

Recommendations To Improve Competition and Innovation ............................................... 56

3. Seed System Resilience ........................................................................ 58

Risks of Declining Public Investment in Our Seed System ..................................................... 61

Infrastructure and Capacity Building to Strengthen Seed System Resilience....................... 64

Recommendations to Improve Seed System Resilience ........................................................ 65
March 2023 / Page 9 of 86

Conclusion............................................................................................. 67

Appendix A. History of IP for Plants in the U.S.............................................. 68

Appendix B. Methods of Analysis of IP Ownership......................................... 74

Appendix C: Seed Industry Diagrams .......................................................... 82

Diagram Color Chart and Vertically Integrated Seed Company ....................................... 82

Vertically and Horizontally Integrated Seed Company ....................................................... 83

Trait Developer....................................................................................................................... 84

Cultivar Developer.................................................................................................................. 84

Seed Dealer............................................................................................................................. 85

Seed Retailer........................................................................................................................... 85

 
Agricultural Marketing Service

March 2023 / Page 10 of 86

Introduction 

American agriculture has undergone significant transformation over the past one hundred 

years. Plant breeding innovation has contributed to this transformation, delivering improved 

varieties to farmers across crops, regions, and production systems. Variety development and 

seed systems engage a wide range of innovators, including farmers, universities and research 

organizations, seed and nursery businesses of all sizes, independent plant breeders, and 

large vertically integrated companies. Over the same time period, the opportunities, limits, 

and challenges of intellectual property (IP) rights have come to play a central role in plant 

breeding. Robust and reliable IP rights and their fair enforcement are a critical component to 

ensure equitable opportunities for all actors engaged in variety development. This, in turn, is 

key to sustaining ongoing innovation to ensure the resilience of America’s agricultural 

production in the face of new and evolving challenges. 

The U.S. Constitution grants Congress the power “to promote the progress of science and 

useful arts, by securing for limited times to authors and inventors the exclusive right to their 

respective writings and discoveries.”8 In response, Congress has crafted a patent system to 

provide adequate incentives to individual inventors while encouraging innovation for public 

benefit. The system strikes this balance in three important ways. First, stringent requirements 

for patent protection seek to assure that ideas and inventions already in the public domain 

remain available for the public to use. Then, patents incentivize innovation by granting a 

period during which no one else can make, use, offer to sell, sell, or import an invention

without the permission of the patent owner. Finally, in exchange for this exclusive right, the 

inventor fully discloses the invention in their application and grants public access to the 

patented invention for further innovation, so long as the patent is not infringed upon during 

the limited duration of the patent. By design, this system provides limited-in-time exclusivity 

to the claimed invention in order to deliver innovations to the public. By requiring disclosure 

of the methods of creating innovations, it allows for others to build on them. 

Research shows that the patent system, generally, spurs innovations in the private sector. A 

recent economic study published by the U.S. Patent and Trademark Office (USPTO) shows 

that IP-intensive industries play a significant role in the U.S. economy in terms of both 

output—measured as gross domestic product (GDP)—and employment.9 IP protection may 

be especially important to new market entrants, individual inventors, and small businesses 

that do not have market share and rely on their IP to compete. Research and development 

spending and new plant variety introductions by the private seed industry have generally 

grown in recent decades. At the same time, some have expressed concerns that dominant 

companies in research-intensive markets, such as pharmaceuticals, technology, and 

8. U.S. Constitution, art. 1, sec. 8, cl. 8.

9. USPTO, IP and the U.S. Economy: Third Edition, by Andrew A. Toole, Richard D. Miller, Nicholas Rada, (2022). 

www.uspto.gov/sites/default/files/documents/uspto-ip-us-economy-third-edition.pdf
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agriculture, are tipping the careful balance struck by Congress to use the intellectual property 

system in ways that protect market power at the public's expense. 

In agriculture, ongoing consolidation has resulted in a global seed industry dominated by just 

a few companies.10 Farmers, plant breeders, businesses, and others have expressed growing 

concern about the implications of this continuing consolidation. Their concern has been 

heightened given the potential interplay between industry consolidation, anticompetitive 

behaviors, and the exclusive rights conferred by the utility patent system, which has 

increasingly been used for seed-related IP following court decisions expanding the scope of 

patentable material.

11The tension is due in part to the fact that the IP system, which provides 

a limited-in-time exclusivity to claimed inventions, coexists with antitrust laws, which 

prohibit specific behaviors that restrict competition in the marketplace.12

On July 9, 2021, President Biden issued an Executive Order titled “Promoting Competition in 

the American Economy,” which creates a White House Competition Council and directs 

Federal agency actions to enhance fairness and competition across America's economy.

Among other things, the Executive Order directs the Secretary of Agriculture, in consultation 

with the Director of the USPTO, to submit a report on concerns and strategies for ensuring 

that the intellectual property (IP) system, while incentivizing innovation, does not also 

unnecessarily reduce competition in seed and other agricultural input markets. As a response 

to the Executive Order, on March 17, 2022, the USDA’s Agricultural Marketing Service (AMS) 

published a request for public comments and information that included 25 multi-part 

questions about competition and market power, intellectual property, and other business 

practices in the seed industry that might be affecting the American farmer’s ability to 

participate in a fair and competitive market. After a 90-day comment period, we (USDA staff 

and cooperators) collected comments, hosted a public listening forum, and heard from an 

10. In its 2018 assessment of global seed markets, OECD writes that “Bayer-Monsanto is the largest player, with 

roughly equal shares of sales coming from seeds and biotech versus agricultural chemicals. ChemChina-Syngenta is 

second, at about a third smaller than Bayer-Monsanto, but mostly focused on agricultural chemicals. DowDuPont 

is the third major player, with a roughly equal split between seeds and biotech. Following the acquisition of Bayer 

assets, BASF has become the fourth player in the sector, although its total sales are less than half of those of 

Bayer-Monsanto. Finally, both Limagrain/Vilmorin and KWS, while important players, are small in comparison with 

the market leaders. Each firm has less than one-tenth the sales of Bayer-Monsanto.” OECD, “New Evidence on 

Market Concentration,” Concentration in Seed Markets: Potential Effects and Policy Responses, (OECD Publishing, 

Paris, 2018), 57.

11. See, e.g., Department of Justice (DOJ). Competition and Agriculture: Voices from the Workshops on Agriculture 

and Antitrust Enforcement in our 21st Century Economy and Thoughts on the Way Forward. 2012. 

www.justice.gov/atr/page/file/1534736/download.

12. The Sherman Act of 1890 authorizes the Department of Justice to prohibit all contracts, combinations and 

conspiracies that unreasonably restrain interstate and foreign trade. The Sherman Act also makes it a crime to 

monopolize any part of interstate commerce. The Clayton Act (1914) further prohibits mergers or acquisitions that 

are likely to lessen competition, as well as other business practices, such as discriminatory pricing and exclusive 

dealing, that may harm competition under certain circumstances. The Federal Trade Commission, established 

through the FTC Act (1914), is empowered to prevent unfair methods of competition and deceptive practices 

affecting commerce, and joins the DOJ in enforcing the Clayton Act.
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array of interested parties to ensure that as many perspectives as possible were represented 

in this report. 

Public comments generally addressed concerns about consolidation and market power; IP

mechanisms and how they are used; business practices that may restrict competition 

including trait stacking, bundling, and licensing terms; information resources including 

farmer access to information and farmer rights to data collected by digital platforms; and 

additional matters including right-to-repair and regulatory burdens for bringing new 

products to market. The comments submitted to the Federal Register reflected a range of 

commenter types. Forty comments were submitted by individuals, including anonymous 

commenters, the public-at-large, farmers, independent plant breeders, and universityaffiliated researchers. Nine comments were submitted by private entities, ranging in size from 

small businesses to multinational corporations. Twenty-six comments were submitted by 

groups or organizations. Ten of these were nonprofits or advocacy groups, ten were trade 

associations, and six were farmers’ organizations. Groups that claimed to represent 

individuals claimed anywhere from one thousand to two million members; however, because 

not all groups explicitly stated their membership, these numbers could not be accounted for 

in a systematic way.

Of the public comments posted to the Federal Register, the majority expressed concern about 

the negative effects of business consolidation and market power of large companies. Some of 

these comments were from individuals and focused on single aspects of the inquiry, such as 

consolidation, patents, or prices of seeds and other inputs. Some comments that described 

concern about concentration detailed licensing practices they consider anticompetitive. 

Others voicing concern about these issues included farmers’ organizations such as the 

National Farmers Union. In addition, this group of comments included organizations 

representing consumer, economic, and environmental advocates such as the American 

Antitrust Institute, the Center for Food Safety, Friends of the Earth, and the Open Markets 

Institute. 

Many commenters were concerned that utility patents have been used to restrict their ability 

to save seed, conduct research, and develop new varieties. Some commenters focused on fair 

licensing, especially when it comes to the ability to develop generic versions of genetically 

engineered traits, and/or pricing and labeling that may be deceptive or unfair to consumers. 

Many of these commenters, especially those that advocated for a balance between 

reasonable IP protection to sustain plant breeder livelihoods while preserving an ability for 

subsequent innovation, were submitted by individual plant breeders (both public sector and 

independent), breeding companies, and groups that include plant breeders in their 

membership, such as the Independent Professional Seed Association and Organic Seed 

Alliance. 

Some trade associations including the American Seed Trade Association, American Soybean 

Association, U.S. Chamber of Commerce, and seed companies such as Bayer and Corteva,

expressed support for the current IP system, recognizing the importance of IP in promoting 
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and protecting investment in research and variety development. Some of these comments 

also called for a stronger IP enforcement regime. Many indicated significant concern about 

international regulatory situations that may delay approval of products for reasons not 

related to public safety. These commenters also requested clarity on regulations of new 

breeding technologies and pointed out that ensuring a fair playing field in the international 

sphere is important for domestic competition and investment.

In response to the request for information published earlier this year and listening sessions 

held through 2022, a number of commenters shared concerns about behavior in the seed 

industry that may be anticompetitive. We also heard from commenters and others, either 

directly or through their organizations, that they cannot publicly oppose incumbents in the 

market for fear of retaliation. For example, the Organic Seed Alliance and the Rural 

Advancement Foundation International noted that farmers in their network have been 

routinely subject to legal and financial intimidation.13The Center for Food Safety submitted a 

50-page report documenting “stories of harassment and intimidation by seed companies.”14

And the Independent Professional Seed Association, the largest national organization of 

independent retailers, which describes itself as representing roughly 22% of the market share 

across corn and soybeans sold in the United States, noted that its comment was submitted 

on behalf of its members, who “fear retaliatory actions in the marketplace should they 

choose to comment individually.”15

Therefore, while we have carefully considered all the information provided during the request 

for information and in subsequent conversations with agency staff, academic experts, 

industry employees, and farmers, we note that commenters’ fear of retaliation and lack of 

information about firm sales data and contracts leads to an incomplete picture of the 

dynamics in the seed industry. It is not within the purview of the USDA to conduct such 

investigations; we believe further scrutiny of concerns about anticompetitive behavior in the 

industry by the relevant agencies is appropriate. 

To help facilitate understanding of the discussion in this report, there is a glossary of terms

starting on page 14. Figure 1 (page 17) shows a simplified schematic of the variety 

development process as well as an illustration of some of the different types of business 

structures that exist within the seed industry.

13. Organic Seed Alliance, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs,” (June 15, 2022), 22. www.regulations.gov/comment/AMS-AMS-22-0025-0073

14. Center for Food Safety, Comment on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs,” in “Seed Giants vs. U.S. Farmers,” (2013), 7. www.regulations.gov/comment/AMS-AMS-22-

0025-0076. 

15. Independent Professional Seed Association, Comment on “Competition and the Intellectual Property System: 

Seeds and Other Agricultural Inputs,” (June 15, 2022), 2. www.regulations.gov/comment/AMS-AMS-22-0025-0061. 
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Glossary

Note: These terms and definitions are intended as general descriptions to assist a non-expert 

reader of this document only. They may reflect a degree of simplification for the purposes of this 

report and are not intended to replace any definitions currently in use in any U.S. Government 

laws or regulations, nor are they legally binding on the actions of any Government agency. For 

specific definitions that apply to any law or regulation of any Government agency, please 

consult directly with that agency. 

Plant Breeding 

Asexual reproduction: A method of plant propagation using vegetative material (other than 

seed) from a single parent, including cuttings, grafting, tissue culture, and propagation by 

root division.16

F1 hybrid varieties are the result of crossing two inbred lines. The sudden introduction of 

genetic diversity creates “hybrid vigor,” leading to a high-performance population that is 

also genetically uniform (all individuals have the same parents). Seeds saved from F1 hybrids

do not produce the same characteristics as those displayed by the hybrid parent; they may 

display any range of genetics from either of the inbred parents. 

Genetic engineering: Manipulation of an organism's genes by introducing, eliminating or 

rearranging specific genes using the methods of modern molecular biology, particularly those 

techniques referred to as recombinant DNA techniques.

Genome: All the genetic material in all the chromosomes of a particular organism.

Genome editing, or gene editing, is a type of genetic engineering that inserts, deletes or 

replaces a specific sequence of DNA in the organism. There are a number of methods of gene 

editing, of which CRISPR is the most well-known to the public at this point.

Inbred lines are plant populations developed by self-pollination that are genetically uniform 

and display uniform characteristics. Seed saved from inbred lines will have the same genetics 

and characteristics as the parent plant.

Plant breeding: The use of cross-pollination, selection, and certain other techniques 

involving crossing plants to produce varieties with particular desired characteristics (traits) 

that can be passed on to future plant generations.

16. PVP Act, Chapter 4, Sec. 41, USDA, Agricultural Marketing Service (AMS), 2013. 
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Plant germplasm: The sum total of the genetic resources in a plant species from which new 

populations are developed.

Stacks are typically combinations of genetically engineered traits that provide different 

functionalities, such as multiple plant incorporated protectants targeting different insect 

families, or multiple herbicide tolerance traits for different herbicide modes of action.

Traits are individual characteristics determined by a plant’s genetics. Traits may be naturally 

occurring, such as having red fruit, identified through conventional plant breeding, or they 

may be genetically engineered, such as herbicide tolerance. 

Variety: A subdivision of a species for taxonomic classification also referred to as a “cultivar.” 

A variety is a group of individual plants that is uniform, stable, and distinct genetically from 

other groups of individuals in the same species.

Crop groups

Commodity crops are defined by the U.S. Farm Bill.

17 Wheat, corn, sorghum, barley, oats, 

cotton, rice, certain pulses, soybeans/other oilseeds, peanuts and sometimes sugar are 

considered commodities, with different crops being considered eligible commodities for

different programs.

Specialty crops are defined as fruits and vegetables, tree nuts, dried fruits and horticulture 

and nursery crops, including floriculture.18 

Plant-related Intellectual Property Rights and Business Practices

Bag tags are licenses affixed to seed packaging that stipulate how the seed may be used. The 

buyer agrees to, or “signs,” the contract by opening the package.

License agreements rely on contract law to stipulate how seed can be used. License 

agreements may be based on patent, PVP, or trademark protection; companies also use 

licenses to restrict the use of seed that is not protected by any other form of intellectual 

property right. 

Material Transfer Agreements (MTAs) are documents that stipulate how seed can be used 

when transferred (but usually not sold) from one party to another. MTAs are often used by 

researchers and germplasm collections.

17. 7 U.S.C. § 9011

18. Specialty Crops Competitiveness Act of 2004 (7 U.S.C. §1621 note), amended under section 10010 of the 

Agricultural Act of 2014, Public Law 113-79. More information at 

https://www.ams.usda.gov/services/grants/scbgp/specialty-crop 
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Plant Variety Protection certificates (PVPs) are administered by the USDA and protect a 

new and distinct variety. Varieties protected by PVP may be used in research and breeding 

but may not be used to create a commercially available F1 hybrid or essentially derived 

variety without a license. PVP varieties may not be exported from the U.S. by anyone without 

the authorization of the certificate holder. The term of protection for seed-propagated crops 

is 20 years from issuance of the certificates and 25 years for trees and vines.

Plant patents are administered through the USPTO and provide exclusive rights to an 

asexually propagated plant and any of its parts. Plant patents consist of only one claim, 

which refers to the description of a novel plant in the application. A plant patent expires 20 

years from the earliest filing date of the patent application.

Utility patents are administered through the USPTO and are issued for inventions that are 

patent eligible, new, non-obvious, and useful. Utility patents can claim plant germplasm, 

plant varieties, genetically modified traits, and breeding methods. Utility patents permit the 

patent holder to exclude others from using the claimed invention in research (with limited 

exceptions), breeding, planting saved seed, and from otherwise using, making, offering to 

sell, selling, or importing the invention. Utility patents expire 20 years from the earliest filing 

date of the patent application. 
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Figure 1: Simplified schematic of variety development process that delivers seed to farmers. This represents many seedpropagated crops; however, there is considerable variation by crop type. Asexually propagated crops have similar variety 

development stages but more biological complexity in systems delivering planting stock to farmers.
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1. Intellectual Property in the Seed 

Industry 

The IP system, by design, is meant to incentivize innovation through exclusive rights in 

exchange for disclosure for public benefit. A goal in promoting fair competition is to ensure 

that exclusive rights are tailored and used in such a manner to arrive at a socially 

advantageous balance between exclusivity and competition. This balance is struck along 

multiple dimensions. In the first instance, which we discuss in this section, this balance is 

reflected in the different type of IP rights and the way they can be challenged and used. 

In agriculture, IP law can protect seeds, plants, plant varieties, parts of plants, methods of 

breeding, methods for identifying or isolating naturally occurring traits, specific modified 

gene sequences, and genetically engineered traits. There are multiple systems of IP

protection available, depending on the type of invention claimed and the amount of 

restriction sought by the inventor: trademarks, plant variety protection (PVP) certificates, 

plant patents, and utility patents (See Glossary). Additionally, trade secret protection, both at 

the state and federal level, may protect parent lines of hybrid crops. Plant breeders and seed 

companies can also use contract law to control the exchange of plants, seeds, and other 

propagation material. These contracts, generally governed by state law rather than federal 

law, interact with patents, PVP, technology licenses, and copyright in various ways. The 

overlap of different IP regimes and contract law on the same variety can create difficulty in 

determining farmers’ rights to save seeds or plant breeders’ ability to experiment with the 

protected variety.

19 

The differences in each form of intellectual property protection are central to any discussion 

about their effects on innovation in plant breeding (see Table 1, page 19). Both plant patents 

and PVP are sui generis intellectual property systems established by Congress to address the 

tension between the biological features of plants (that plants reproduce naturally, their 

improvement and adaptation is iterative, and farmers have historically saved seed and other 

propagation material) and plant breeder and seed companies’ need to recoup development 

costs to sustain ongoing research. Utility patents are used widely across industries and are 

not tailored specifically to plants. PVP certificates can protect all types of plant varieties,

20

while plant patents protect only asexually propagated plant varieties. Importantly, utility 

patents are the only mechanism to protect plant traits (including genetically engineered 

traits) and breeding methods. The PVP system provides both research and breeding 

exemptions. The patent system does not provide a breeding exemption and allows a research 

exception that encompasses only “very narrow” experimental uses “solely for amusement, to 

satisfy idle curiosity, or for strictly philosophical inquiry.” It does not include uses that have 

19. See, for example, Mark D Janis, “Intellectual Property Issues in Plant Breeding and Plant Biotechnology,” 

Articles by Maurer Faculty, 2560, (2002). www.repository.law.indiana.edu/facpub/2560.

20. The 2018 Farm Bill added asexually propagated crops to those eligible for PVP. 7 U.S.C. § 2402(a).
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the “slightest commercial implication” and has been interpreted to exclude academic

research.

21

In general, plant breeders have diverse perspectives on the effects of utility patents on

continued innovation. Some are of the opinion that utility patents on genetically engineered 

traits are appropriate subject matter, while patents on varieties and traits from traditional 

breeding are not. Some express the view that utility patents on varieties are appropriate

subject matter but that patents on traits produced by traditional breeding are not. Others 

think that patents on traits from traditional breeding are necessary to protect their 

investment from appropriation and to allow them to cross-license other patented traits but

contend that varieties should only be protected through PVP. Finally, some believe that the 

current system of allowing utility patents on both varieties and traditionally bred traits is 

appropriate.

Table 1: Comparison of different forms of intellectual property protection for 

plants 22

FORM (AGENCY) CRITERIA ELIGIBLE CLAIMS

SAVED SEED 

EXEMPTION

BREEDING 

EXEMPTION

RESEARCH 

EXEMPTION

Plant Variety 

Protection

(USDA)

Plants that are new, 

distinct, uniform and

stable23 

A described new 

plant variety

Yes, up to the 

amount 

purchased

Yes Yes

Plant Patents

(USPTO)

Asexually propagated 

plants that are new, 

distinct and 

completely described

One claim that 

describes a new plant 

variety

No No Restricted

Utility Patents

(USPTO)

Eligible subject 

matter, novel, 

nonobvious, definite

and enabled

Any number of claims 

that describe a 

variety, modified

genetic trait, method 

of identifying a trait, 

or method of 

breeding 

No No Restricted

21 Madey v. Duke University, 307 F.3d 1362

22. Chart based on Table 1 from Mojdeh Bahar and Robert J. Griesbach, “To Protect or Not to Protect: Guide for 

Deciding on Public Release or Intellectual Property Protection of New Plant Cultivars and Germplasm,” HortScience

54, no. 4 (April 1, 2019): 764, https://doi.org/10.21273/HORTSCI13528-18.

23. Plant Variety Protection includes the right to prevent others from commercializing "essentially derived” 

varieties without permission of the owner of the PVP certificate. Utility patents and plant patents do not include 

the concept of essential derivation.
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Patents Are Used Widely Across Crop Markets

In 2013, researchers noted that the rate of issuance of utility patents on new crop varieties 

has, in recent years, generally outpaced the rate of PVP applications.24 In a preliminary 

analysis of PVP certificates and patents mentioning crop names, we found that PVPs 

accounted for 61% of IP developed in 1990 and only 38% in 2020 (See Appendix B). Across all 

crops, IP composition generally shifted from mostly PVP certificates in the 1990s to a higher 

percentage of utility patents in 2020 (See Figure 2, page 22).25 This trend was more 

pronounced for crop markets dependent on genetically engineered varieties, such as corn,

soybean, and cotton, in which PVPs made up most IP in the 1990s and less than half in 2020. 

In contrast, for wheat and forage species, which are crops with significant public sector 

funding and whose IP ownership is less concentrated, IP composition tended to remain 

mostly PVPs, with slight increases in numbers of patent certificates awarded in 2020.

26

For specialty crops, utility patents often focus on improvements on traits such as disease 

resistance or aspects of quality. Some plant breeders with whom we spoke noted that some 

crops—mostly self-pollinated vegetables such as green beans or lettuce—rely heavily on 

utility patents. There are also many vegetable varieties without IP on the variety itself that are 

sold as F1 hybrids or with licenses. These may not be protected as a variety but may contain

patented modified gene(s) that confer traits such as specific disease resistances. Plant 

patents have been the predominant form of IP for many asexually propagated specialty

crops, although there is growing use of utility patents and, more recently, PVP. The trend 

toward utility patent protection for all crop types makes critical the consideration of its 

mechanisms of protection and impacts on the seed market in the future. 

24. Philip Pardey, Bonwoo Koo, Jennifer Drew, Jeffrey Horwich, and Carol Nottenburg, "The evolving landscape of 

plant varietal rights in the United States, 1930–2008." Nature Biotechnology 31, no. 1 (2013): 25-29.

25. From 1970 to 2020, the composition of IP for plants shifted from mostly PVP to utility patent, particularly for 

soy, corn, and cotton, whose IP ownership by the top four firms also dramatically concentrated during that time 

period. For example, for soybean, PVPs accounted for 97% of IP in 1990 and only 31% in 2020 with the rest being 

utility patents. For corn, IP was 68% PVP in 1990 and 44% in 2020. For cotton, IP was 86% in 1990 and 32% in 2020.

26. PVPO Application Status Report, accessed November 3, 2022. 

www.ams.usda.gov/sites/default/files/media/PVPOApplicationStatus.xlsx.
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Figure 2: IP by PVP (purple) vs. patents (green) from 1970 – 2020 for crops with the highest numbers of certificates. Each bar 

represents a 5-year time period, centered around the year labeled on the x-axis. 
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Plants Pose Unique Challenges for Patent 

Examination

The patent system can provide an important benefit to businesses by protecting their 

investment and efforts in developing new varieties, traits, or breeding methods. To get a

utility patent, the invention must meet the statutory requirements of being patent eligible 

subject matter, useful, novel, and non-obvious. Since 1980, the Supreme Court has issued a 

series of decisions that have changed the way that the USPTO examines applications on 

plants (See Appendix A). In 2019, the USPTO published updated guidance to clarify practices 

for patent examiners in determining subject matter eligibility as it relates to laws of nature, 

natural phenomena, and abstract ideas,27 and in 2021 issued a request for comments 

regarding patent eligible subject matter.28 Commenters noted that there is still significant 

concern regarding patent eligibility for natural phenomena and traditionally bred plants.29

This leads to concerns about utility patents negatively affecting innovation and new variety 

development. One avenue for ensuring that the IP system effectively incentivizes innovation 

is to ensure issued patents satisfy each statutory requirement.

Challenges: novelty and non-obviousness 

To ensure that a claimed invention is novel and non-obvious, patent examiners conduct a 

“prior art” search of previously published patents, literature, and other types of public 

information to ensure that the invention was not previously known or used. Some 

commenters believe incomplete searching has led to patents that covered existing plant 

varieties, characteristics, and methods of breeding.30 The scope of prior art is vast and 

includes subject matter that has been patented, named in a patent application, described in 

a printed publication, in public use, on sale, or otherwise publicly available before the filing 

date of the claimed invention.31 For plants and plant genetics, prior art includes evidence of 

public use of the variety or trait in question, including plant and utility patents, patent 

application publications, published PVP applications, variety registrations in other 

jurisdictions, academic journals, public germplasm collections, seed catalogues, and sales 

receipts that adequately describe the claimed invention. This represents an inherently 

complex search that requires significant time and resources, as prior art for plants may not be 

as immediately accessible as for other types of inventions. In fact, when Congress passed the 

27. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019), 

www.federalregister .gov/documents/2019/01/07/2018-28282/2019-revised-patent-subject-matter-eligibilityguidance.

28. Patent Eligibility Jurisprudence Study, 86 Fed. Reg. 36257 (July 9, 2021), 

www.federalregister.gov/documents/2021/07/09/2021-14628/patent-eligibility-jurisprudence-study

29. For example: “There are an extensive number of patent protections, including Utility Patents, on native traits in 

plants conferred through traditional breeding and selection.” Anonymous, Comment on “Competition and the 

Intellectual Property System: Seeds and Other Agricultural Inputs,” (June 15, 2022), 1. 

www.regulations.gov/comment/AMS-AMS-22-0025-0063

30. See, for example, Jim Myers, Comment on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs,” (June 15, 2022), 4. www.regulations.gov/comment/AMS-AMS-22-0025-0060

31. 7 U.S.C. § 102.
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Plant Patent Act in 1930, the law made special provisions for the USDA to provide input to the 

USPTO during the examination process,32 acknowledging that the Department would have 

access to agricultural records that could support a prior art search.33

As a practical matter, the literature most often cited by patent examiners in patent 

applications is previously issued patents, which contain disclosures that can often be more 

easily mapped to the claims in patent applications.

34 Because many plant breeders may 

choose not to use the patent system,35 their work may not be as readily accessible to patent 

examiners.These gaps likely require establishing more comprehensive common prior art 

sources used by all parties.

In 2011, the America Invents Act changed the third-party prior art submission rules for 

pending patent applications, indicating an opportunity for the public to help improve the 

prior art search and, consequently, the quality of patents. Now, the public can submit 

evidence of prior art to pending applications for up to six months after they are published. 

Unfortunately, this provision has seen little use.36 In the plant space, this may be because 

some plant breeders are unaware that such an option exists, or because of the prohibitive 

amount of time and cost it would take to monitor pending patent applications. The USPTO 

publishes pending patent applications every Thursday via a recently redesigned web-based 

search tool called PubSearch. Some commenters reported difficulty using this search tool to 

effectively search for pending patent applications.37 Since the time that comments closed and 

32. “The President may by Executive order direct the Secretary of Agriculture, in accordance with the requests of 

the Director, for the purpose of carrying into effect the provisions of this title with respect to plants (1) to furnish 

available information of the Department of Agriculture, (2) to conduct through the appropriate bureau or division 

of the Department research upon special problems, or (3) to detail to the Director officers and employees of the 

Department.” 35 U.S.C. § 164

33. In its 1967 report, the President’s Commission on the Patent System noted that in practice, “[plant] patents are 

granted if the Department of Agriculture notifies the Patent Office that, as far as it can determine, the plant variety 

is new, and the examiner finds no art indicating the contrary.” To Promote the Progress of Useful Arts in an Age of 

Exploding Technology: Report of the President’s Commission on the Patent System. Washington, D.C: The 

President’s Commission on the Patent System, (1967), 21.

34. Christopher A. Cotropia, Mark A. Lemley, and Bhaven Sampat, “Do Applicant Patent Citations Matter?,” 

Research Policy 42, no. 4 (2013): 844–54, https://doi.org/10.1016/j.respol.2013.01.003. 

35. “Most freelance plant breeders draw part of their motivation for plant breeding from a deeply held belief that 

the rights of farmers, gardeners, and others to grow seeds, sell them, and breed from them should not be 

infringed.” Carole Deppe, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs” in “Freelance Plant Breeding,” (June 15, 2022), 138. www.regulations.gov/comment/AMSAMS-22-0025-0075.

36. USPTO letter to FDA, (2022), 7. www.uspto.gov/sites/default/files/documents/PTO-FDA-nextsteps-7-6-

2022.pdf

37. “While purported to be more user-friendly, the application still requires the user to have a computer that can 

run the program as well as working knowledge of field codes, Boolean, and proximity operators, as well as the time 

to search for pending applications pertinent to their crops.” Organic Seed Alliance, Comment on “Competition,”

page 32. www.regulations.gov/comment/AMS-AMS-22-0025-0073. 
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in response to public feedback, the USPTO designed and deployed a simplified, guided 

search interface, Patent Public Search Basic, in December of 2022.38 

Some commenters noted that many plant breeders do not have the time and resources to 

monitor such applications, let alone to put together a third-party prior art submission, even if 

their work could render an application’s claims invalid. According to a public sector vegetable 

breeder, the third-party prior art submission process “is still rather opaque to those not 

versed in patent law and requires a substantial time commitment to obtaining and reading 

patent applications when they first issue. These requirements are generally beyond the

means of small seed companies and public institutions.”39 Additionally, some public 

institution technology transfer offices with whom we spoke also do not advise plant breeders 

to submit prior art because the patent examiner is likely to find relevant prior art anyway, 

especially when initial claims are particularly broad. Though the USPTO offers resources for 

the public to provide submissions,40 there still may be other reasons why parties do not 

submit relevant prior art. Overall, this feedback suggests that the USDA and USPTO could 

enhance outreach to farmers, plant breeders, businesses, and others in the seed and 

agricultural markets. 

Some commenters wrote that it is a common practice for patent applicants to initially submit 

the broadest possible claims in patent applications. For example, in their public comment, 

the Farmers Business Network wrote: “It is standard practice among plant breeders now to 

evaluate dozens or a hundred attributes of the new germplasm to be able to find some 

obscure differences from existing germplasm, as a way to avoid the issue of prior art.”41 In a 

review of nine patents commenters brought to our attention, three of the respective patent 

applications were filed with broad claims on naturally occurring traits, and as they moved 

through prosecution, the patent examiner gradually cancelled claims in order to ultimately 

result in a patent that only covers a specific hybrid or single variety. In these instances, it 

appeared that responsibility was on the examiner to determine what aspects of the claims 

were patentable. The language included in the original specification of the application that 

38. The USPTO notes that with the new Patent Public Search Basic interface, users do not have to learn new 

syntax, and the search results can readily be reviewed with a preview of the first page or a link to the full 

document. Training on the Patent Public Search tool is available on demand as a web-based tutorial and through 

videos found on the YouTube @USPTOvideo channel. Users can also attend livestream Patent Public Search 

training hosted by the Patent and Trademark Resource Center (PTRC). Initial user feedback seen by the Customer 

Service (CX) team, the PTRC, and Public Search Facility (PSF) shows that these changes have helped to address 

customer concerns.

39. Jim Myers, Comment “Competition,” 8. 

40 See, e.g., USPTO, Quick Start Guide and FAQs available at: 

https://www.uspto.gov/patents/initiatives/preissuance-submissions/resources; Basic Guidelines and Helpful Hints 

available at: https://www.uspto.gov/patents/initiatives/preissuance-submissions/about; and Detailed guidance in 

MPEP § 1134.01 available at https://mpep.uspto.gov/RDMS/MPEP/current#/current/d0e121605.html.

41. Farmer Business Network, Comment on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs,” (June 15, 2022), 7. www.regulations.gov/comment/AMS-AMS-22-0025-0071. 
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concerned plant breeders, who encountered difficulty determining whether what was 

ultimately claimed would have impeded their breeding projects.

Challenges: disclosure

Patent law requires an applicant to fully disclose their invention by providing a written 

description and the manner of making and using the invention, such that one of skill in the art 

can make and use the invention without undue experimentation.42 Commenters noted that 

patent applications may omit pedigree information (which describes the breeding history of 

the variety or trait) that they believe is critical to understanding the process of creating a new 

variety or incorporating a trait into a variety.43 According to these commenters, without this 

information, it is difficult for examiners or third parties monitoring applications to find 

relevant prior art. For example, a variety that appears in a pedigree for a new patent 

application might have a PVP certificate, or publication, or commercial sale associated with it 

that documents prior art on a specific trait. 

Some plant breeders with whom we spoke noted that in practice, disclosure may only

provide information that the patenting firm would be able to understand. For a stylized 

example, one plant breeder noted that a “detailed description of the invention” included in a 

patent application for a hybrid variety might read: “The F1 hybrid was created by crossing two 

proprietary lines. The F1 was grown in plot number 2X6754 under the stake number N1987.”44

The person noted that the patent examiner may then request pedigree information, but that 

the applicant can request the pedigree to be classified as confidential business information.

By contrast, the PVP application requires a variety’s “genealogy (back to and including public 

and commercial varieties, lines, or clones used),” such that a person skilled in the art could, 

given enough time, recreate a similar invention from identifiable and available varieties. 

Although only certain types of information must be disclosed in the patent system, applicants 

have general duties of good faith, candor, and disclosure associated with the patent 

prosecution process.

45 At present, pedigree information may be needed to meet specification 

requirements.

46 Those requirements can also be met by depositing a sample of biological 

material in a public depository, which is discussed in more detail below.47 Taken together,

such comments suggest that more fulsome disclosure of pedigree may be beneficial in future 

prior art searches and to enable follow-on innovation for some patented varieties.

In summary, plant breeding is a lengthy and resource intensive endeavor; sometimes, it takes 

decades to develop a marketable product with significant public value. Some commenters 

42. 35 U.S.C. §112

43. “One concern about patent quality is that some patents do not contain sufficient information and detail such 

that another developer could replicate the invention in order to improve upon it.” Breakthrough Institute, 

Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” (May 

16, 2022), 3. www.regulations.gov/comment/AMS-AMS-22-0025-0038.

44. This is a stylized example based on an active patent. The plot and field numbers have been changed.

45. 37 C.F.R. 1.56

46. 35 U.S.C. 112.

47. 37 C.F.R. 1.802.
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noted that the long development period is a strong argument for the current IP system. For 

example, KWS Seeds, headquartered in Germany, wrote: “It requires years, and sometimes 

decades, to produce seeds and other agricultural inputs... The existing IP system enables 

access to new and improved products which are based on the needs of farmers and the 

growing challenges they face.”48 Others noted that the resources required to develop new 

varieties are also an argument for rigorous examination of claims to ensure that they meet 

stringent criteria for subject matter eligibility, reduction to practice, novelty, nonobviousness and utility. For example, one commenter outlined four separate instances when 

an issued patent affected research and breeding programs for which the commenter believed 

there was documented prior art at the time the patent was filed.

49 While we did not evaluate 

any particular case, a terminated breeding project due to an invalid patent represents a 

significant loss of investment and may deprive growers of plant varieties and traits that 

would have resulted from that line of research. 

Consumers, farmers, and the seed breeding industry alike have an interest in assuring that 

patents issued maintain high standards of novelty and non-obviousness, as a baseline of a 

robust and reliable patent system. Enhanced interagency cooperation, as well as increased 

engagement with all farmers, plant breeders and seed companies, can help increase certainty 

and confidence in this process.

Post–Issuance Proceedings for Challenging Patent Validity

The USPTO offers three avenues for challenging granted patents. An ex parte reexamination 

can be requested after a patent has been granted, with the scope of the challenge limited to 

novelty and non-obviousness. In an ex parte review, the requester submits patents and 

printed publications that may invalidate the patent. If the USPTO determines that there is a 

“substantial new question of patentability,” the office will order reexamination and the 

application is reassigned to a new examiner.50 The filing cost for requesting a reexamination 

is $6,300, with discounts, bringing the cost down to $2,560 for small entities and $1,260 for 

micro entities.51 Because the proceedings are ex parte, there is no participation by third 

parties after the initial filing, keeping legal fees to those challenging patents down.

Under the America Invents Act of 2011 (AIA), a challenger also may pursue two avenues more 

akin to litigation by involving the Patent Trial and Appeal Board (PTAB).52 One avenue 

involves a petition for post-grant review (PGR), which must be filed within the first nine 

months after the patent has been granted. In another avenue, a challenger can request an 

inter partes review (IPR) after the post-grant review period has expired. In an inter partes 

48. KWS Seeds, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs” (June 15, 2022), 2. www.regulations.gov/comment/AMS-AMS-22-0025-0055.

49. Jim Myers, Comment on “Competition,” 4.

50. 37 C.F.R 1.510

51. USPTO, “Fee Schedule,” www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule.

52. USPTO, “What are AIA proceedings,” https://www.uspto.gov/patents/patent-trial-and-appeal-board/aboutptab/what-are-aia-proceedings. 
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review, the scope of the challenge is limited to novelty and non-obviousness, and only on the 

basis of prior art consisting of patents or printed publications.53 Small businesses may find 

the cost prohibitive: the base fee to request a post-grant or inter partes review from the PTAB

is over $19,000, with fees totaling over $40,000 if the request is instituted, with no discounts

provided for by Congress for small and micro entities. These fees do not account for the legal 

fees incurred while challenging a patent.54 The USPTO under the Biden Administration is 

working to help those who are under-resourced have access to pro bono legal counsel.55

If a plant breeder or seed firm chooses not to challenge a patent but continues their line of 

research, they may be liable for infringement should the patent holder assert their IP rights. 

Litigation often involves differences in interpretation of patent claims. Though the patent 

may still be challenged at the USPTO once litigation commences or in the litigation itself (or 

both), when litigation occurs in such cases, there may be an imbalance in resources between 

the patent holder and the party accused of infringement. Small businesses challenging the 

patent of an incumbent may find that the patent holder is bringing more legal expertise and 

staff time to the case than the parties accused of infringement, making settlements more 

likely.56 Though the USPTO under the Biden Administration is working on measures to reduce 

the uncertainty in patent claims, there is currently no process for an entity affected by a 

patent to request clarification of claims from the USPTO in order to determine if their 

activities are infringing. This means that plant breeders and seed companies working in an 

area potentially covered by a patent would be advised to seek legal advice on their freedomto-operate in light of the patent or may be subject to an unknown amount of liability from 

patent infringement. Though various legal resources are available on a pro bono or fee basis, 

not all plant breeders and seed companies have convenient access to freedom to operate 

advice. 

In many instances, a patent holder generally cannot obtain damages for infringement if they 

do not give notice by marking their product or notifying the infringer that their product is 

patented.57 While this may be the case, a plant breeder who did not obtain the claimed 

innovation from the patent owner may not be given notice because the patent owner may 

not know what research the affected party is conducting, and the affected party likely does 

not want to reveal their current research and development activities to a potential 

competitor in order to obtain clarification from the patent owner on whether the owner 

considers those activities an infringement. As a practical matter, plant breeders may already 

53. USPTO, “Inter Partes Review,” www.uspto.gov/patents/ptab/trials/inter-partes-review.

54. USPTO, “Fee Schedule,” www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule.

55. UPSTO, “USPTO launches PTAB Pro Bono Program,” https://www.uspto.gov/about-us/news-updates/usptolaunches-ptab-pro-bono-program.

56. For example: “Litigating a patent infringement action is extremely costly, and the high cost favors large 

corporations. Farmers accused of infringement may feel pressured to settle because defending themselves in court 

may drive them to bankruptcy.” Organic Seed Alliance, Comment on “Competition,” 25. 

57. 35 U.S.C. § 287
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have invested significantly in a line of research and breeding before IP rights are granted to a 

competitor and before they are likely to be notified regarding these IP risks. 

In summary, commenters reported that the difficulty of monitoring pending patent 

applications, the expense of challenging a patent post-issuance, and the steep risk of liability 

for patent infringement have created a situation in which small and mid-sized programs are 

more likely to decide to either pay a licensing fee for an innovation they may already have 

commercialized, or to discontinue that line of research and breeding entirely rather than to 

challenge a patent, even if the outcome would help resolve legal uncertainties. In October 

2022, as a response to the executive order on “Promoting Competition in the American 

Economy,” the USPTO under the Biden Administration published a request for public 

comments regarding several of the topics outlined above.58 The request seeks input on 

additional sources for prior art, third party avenues for participation in the prosecution 

process, and alternative fee structures that may encourage higher quality patent 

applications. Previously, the USPTO under the Biden Administration has stated its intention 

to provide more time for patent examiners to review patent applications and to collaborate 

with other federal agencies to ensure robust and reliable patent rights. This initiative is 

ongoing and there are several identified areas for coordination between the USDA and the 

USPTO. 

Continued Innovation as Impacted by Disclosure, 

Germplasm Accessibility, Research and Breeding 

Exemptions 

Commenters raised concerns that the utility patent system may need to better accommodate 

plant-specific features that make them different from other patentable inventions. Fully 

addressing the barriers to continued innovation may require legislative or judicial action; 

however, there are areas in which it is possible to improve the current system to achieve a 

better balance of both providing needed IP protection for innovations and encouraging 

continued innovation that builds on protected varieties and traits. 

Continued innovation: disclosure

Patent law requires that, in exchange for a limited period of exclusivity, the patent applicant 

must adequately disclose their invention, such that any person skilled in the art could make 

or use the invention without undue experimentation.59 As mentioned above, information 

such as pedigrees may not be disclosed in published patents. In the words of one plant 

breeder we interviewed, “It used to be that you could go back and read a patent and 

understand what they did to create the variety. Now, the patents don’t tell you anything.” The 

58. USPTO, “Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent 

Rights,” 87 Fed. Reg. 60130, https://www.federalregister.gov/documents/2022/10/04/2022-21481/request-forcomments-on-uspto-initiatives-to-ensure-the-robustness-and-reliability-of-patent-rights. 

59. 35 U.S.C. § 112. 
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commenter expressed concern that if a plant breeder wants to improve upon the steps taken 

by the inventor during the active term of the patent, they would have no point for reference 

for its origin, and thus be unable to utilize the disclosure. The commenter’s concern is that if 

the published patent does not trace pedigree back to known and available parents, and seed 

of the patented plant is not accessible, the public cannot understand and improve on the 

claimed invention. 

While a pedigree gives enough detail to understand the development of a new variety,

disclosing a plant in sufficient detail in writing to recreate it from scratch is, in general, not 

possible due to its biological nature. To create a new variety or incorporate a new trait into a 

breeding program, it is necessary to have access to germplasm, i.e., seeds or other 

propagation material, which contain the source genetic material.60 New varieties can be 

created from non-IP protected germplasm, but follow-on innovations on patented material 

are constrained by restrictions which limit access to that germplasm. In other industries, 

innovators may be able to look at descriptions of inventions described in patent applications, 

then design around the claimed invention. In contrast, plant varieties and the genetic traits 

they contain are the product of evolutionary history, domestication, and breeding. 

Withholding access to IP-protected seed or other propagation material prevents access not 

only to the trait or variety in question, but also to the prior innovation that led to its 

development. This limits the ability of other innovators to make follow-on improvements.

Accordingly, PVP and utility patents often require seed deposits of the protected plant. These 

deposits serve as part of the disclosure and are intended to be available for continued 

innovation. For PVP varieties, the assumption is that one could procure seed on the 

commercial market and make use of the research and breeding exemption to continue 

innovation. As discussed later, these varieties are increasingly often only available with 

licenses that restrict research and breeding. For utility patents, seed deposits may be 

available, but without a broader research or breeding exemption, such deposits may be

insufficient to allow for continued innovation during the life of the patent. We recognize, of 

course, the importance of enabling plant breeders of protected varieties to recoup their 

investment, particularly in view of the rapid development of new breeding technologies, such 

as genome editing. 

Continued innovation: germplasm accessibility

If there are closely related varieties on the market that are not utility patented, research and 

breeding restrictions may not be severe; however, once a large percentage of varieties are 

subject to patents, it could be difficult for new entrants to gain access to commercially 

relevant germplasm. The large wave of business consolidation that has occurred in the past 

few decades is evidence that sometimes, the fastest way for a variety developer to enter the 

60. “Plant breeders must not only know how the current variety was developed and its characteristics, but also 

have access and the right to use the current variety in breeding. Consequently, patent disclosures alone do not 

allow other inventors to benefit from the patented lines when creating new plant varieties.” Farmer Business 

Network, Comment on “Competition,” 4.
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market may be to purchase a breeding program from another firm or to acquire a smaller 

breeding firm with its own germplasm. Commenters note that without access to germplasm, 

entering the market is nearly impossible. For example, Farmers Business Network, a farmerto-farmer network and e-commerce platform wrote, “Many competitive breeding programs 

have closed, and new entrants are very rare. This consolidation will only continue to intensify, 

as new germplasm must be bred from existing germplasm that is owned and controlled by a 

few dominant companies.”61

Continued innovation: research and breeding exemptions

Developing a commercial variety takes multiple growing seasons and sometimes a decade or 

more of careful selection. For perennial crop varieties, many of which are protected by plant 

patents, the plants themselves can take a decade to mature and breeding timelines are

extremely long. For both perennial and annual crop varieties, a competing plant breeder who 

has been unable to access germplasm during the active life of a patent cannot simply release 

a new variety with the patented traits as soon as the patent expires or release a variety that 

builds on a patented variety through traditional breeding. They can only start innovating after 

the relevant patents expire, and only if the off-patent germplasm has seeds available that will 

germinate and are not covered by contracts that prohibit breeding.

62 In most countries, plant 

varieties are ineligible for patent protection, with only a few exceptions: among them the 

United States, Australia, Japan, and South Korea. Most other countries have adopted the

Plant Breeders’ Rights framework set forth by the International Union for the Protection of 

New Plant Varieties (UPOV), which allows for breeding during the active life of the IP 

protection (see below). 

International IP protection for plant varieties

UPOV: The International Union for the Protection of New Varieties of Plants (Union 

interationale pour la protection des obtentions végétales) is an intergovernmental 

organization based in Geneva, Switzerland. UPOV was established in 1961 by the International 

Convention for the Protection of New Varieties of Plants (the "UPOV Convention"). It came

into force in 1968 after ratification by Germany, the Netherlands and the UK and was revised 

in 1972, 1978 and 1991. The U.S. is a signatory to the 1991 convention. According to UPOV, its 

mission “is to provide and promote an effective system of plant variety protection, with the 

aim of encouraging the development of new varieties of plants, for the benefit of society.”63

61. Farmer Business Network, Comment on “Competition,” 3. 

62. “Plant breeding, whether done by traditional methods or relying on modern molecular biology techniques, is 

somewhat unique in the context of cumulative innovation. Specifically, production of an improved variety is not 

possible without physical access to the relevant germplasm. Information per se, such as that disclosed by utility 

patents, is just not enough to provide the blueprint for an improved variety without access to the relevant 

biological material.” Matthew S. Clancy and GianCarlo Moschini, “Intellectual Property Rights and the Ascent of 

Proprietary Innovation in Agriculture,” Annual Review of Resource Economics 9, no. 1 (October 5, 2017): 61, 

https://doi.org/10.1146/annurev-resource-100516-053524.

63. USPTO, “International Convention for the Protection of New Varieties of Plants,” www.uspto.gov/ippolicy/patent-policy/international-convention-protection-new-varieties-plants. 
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Currently, there are 78 member countries and intergovernmental organizations.64 The UPOV 

convention principles are similar to those in the U.S. PVP Act in several important ways, 

including the presence of a breeding and research exemption and the concept of essentially 

derived varieties (EDV). 

EDV: The concept of an essentially derived variety (EDV) in the PVP Act recognizes the need to 

balance research and breeding exemptions with the protection of investment in the 

development of new varieties, by preventing the commercialization of an EDV without a 

license from the original PVP owner. The UPOV Council issued the non-binding Explanatory

Notes on EDVs in 2017.65 However, the rapid development of new breeding technologies has 

brought the EDV concept to the forefront of discussions. Because new breeding technologies 

such as genome editing allows a plant breeder to make precise changes in a genetic sequence 

without altering the rest of the genome of the initial variety, many plant breeders of the initial 

varieties and PVP owners are concerned that the competitors would use a new breeding 

technology with their protected varieties to develop new varieties with fewer costs and less

time. While genome editing would appear to be included in the definition of EDV under the 

U.S. PVPA66 and is currently included in the definition of an EDV in non-binding guidance from 

UPOV,

67 seed industry actors have asked UPOV Council to re-examine their definition of EDVs 

in light of new technologies. While an agreement among the UPOV members has not been 

reached, some plant breeder groups have developed crop-specific professional agreements. 

For example, the Wheat Workers Code of Ethics governs conduct when working with 

experimental lines from other wheat breeders and lists categories of variety derivation 

methods where written approval is needed from the originator. 68

TRIPS: The World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of 

Intellectual Property Rights (TRIPS), negotiated during the 1986-94 Uruguay Round, 

introduced intellectual property rules into the multilateral trading system. According to the 

WTO, TRIPS is “an attempt to narrow the gaps in the way intellectual property rights are 

protected and enforced around the world, and to bring them under common international 

64. Union for the Protection of New Varieties of Plants, https://www.upov.int/overview/en/upov.html. 

65. UPOV, “Explanatory Notes on Essentially Derived Varieties.” 

www.upov.int/meetings/en/doc_details.jsp?meeting_id=64149&doc_id=550033. 

66. 7 U.S.C. § 2401 (4) 

67. UPOV, “Explanatory Notes on Essentially Derived Varieties.” 

www.upov.int/meetings/en/doc_details.jsp?meeting_id=64149&doc_id=550033. 

68. National Wheat Improvement Committee, “Wheat Workers Code of Ethics for Distribution of Germplasm,” 

(November 5, 1994). www.ars.usda.gov/ARSUserFiles/30421000/wheatcode.html. ”Uses for which written 

approval of the owner/breeder is required include: (a) Testing in regional or international nurseries; (b) Increase 

and release as a cultivar; (c) Reselection from within the stock; (d) Use as a parent of a commercial F1 hybrid, 

synthetic, or multi-line cultivar; (e) Use as a recurrent parent in backcrossing; (f) Mutation breeding; (g) Selection 

of somaclonal variants; or (h) Use as a recipient parent for asexual gene transfer, including gene transfer through 

molecular genetic techniques.”
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rules.” It establishes minimum standards of protection and enforcement that each 

government must provide citizens of all 164 WTO member countries.69 

To address this, many plant breeders have recommended an exploration of research and 

breeding exemptions for utility patents in the plant breeding space. The International Seed 

Federation, which did not submit comments but is widely regarded for its role in the global 

seed industry, notes that “certain exceptions from patent rights are necessary in the field of 

plant breeding to maximize the potential for innovation” and suggests that “both a general 

research exception and a specific plant breeders’ exception in patent laws should be 

considered.”70 Some countries which allow patent protection on plant traits have adopted 

research exemptions within their patent system.71 Additionally, in public comments and

interviews conducted for this report, several plant breeders from both large companies and 

small start-ups emphasized the need to maintain access to seeds for continued innovation. 

One commenter, a plant breeder and seed company founder, suggested that “all patented 

and IP protected varieties” should be available for breeding with a “fair royalty system.”72

Farmers Business Network wrote that “plant breeders, seed companies, farmers, and 

consumers in the United States would benefit from legislation creating a research exemption 

for patented germplasm.”73 

Currently, the USPTO is exploring whether research exceptions in utility patents would 

strengthen U.S. innovation not only in the plant breeding space, but also in other areas such 

as pharmaceuticals and drugs, and is working with the FDA on those efforts. In plant 

breeding, exemptions could include, for example, a research exemption to allow precommercial use of the innovation in research and breeding and enable more rapid postpatent entry, and a null-breeding exemption to allow plant breeders to work with the 

genetics in a variety that contains a patented genetically modified trait if the variety to be 

commercialized no longer includes that trait.

In addition to research and breeding restrictions, utility patents also restrict others from 

making the patented product. Seed-bearing plants are organisms whose multiplication is the 

natural result of using them as the seller intends and thus, they are different from other 

industrial products. If a grower purchases patented tomato seeds, the tomato grown from 

those seeds will naturally contain more seeds, although patents technically restrict others 

69. World Trade Organization, “Intellectual property: protection and enforcement,” 

https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm.

70. International Seed Federation, “ISF View on Intellectual Property,” (2021), 4, 27. www.worldseed.org/wpcontent/uploads/2021/08/ISF-View-on-Intellectual-Property-2012-amended-2021-1.pdf

71. France: Article L. 613-5-3 of the Intellectual Property Code adopted in 2004; Germany: Section 11.2.b of the 

Patent Act adopted in 2005; the Netherlands: Article 53.2.b of the Dutch Patent Act; Switzerland: Article 9 (e) of 

the Federal Act on Patents for Inventions, adopted in 2008.

72. Ken Owens, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs” (May 15, 2022), 1. www.regulations.gov/comment/AMS-AMS-22-0025-0028

73. Farmer Business Network, Comment on “Competition,” 3. 
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from recreating the invention without a license. Some commenters note that this selfreplicating nature of seeds is a strong argument for seed-saving restrictions, particularly in 

the international arena. Corteva, a major seed firm in the United States, wrote, “Strong and 

enforceable IP protection incentivizes and safeguards U.S. investment. It also helps reduce 

the risk of theft and misappropriation of U.S.-funded innovation by overseas competitors. 

Major agricultural technologies, such as seeds or DNA-encoded traits, are self-replicating and 

especially vulnerable to misappropriation.”74 Others argued that this characteristic of seeds 

makes them an unnatural fit for the patent system, and describe the great lengths required to 

avoid unintentionally violating patent restrictions. For example, one farmer and corn breeder

commented: “Over the years as we’ve put in the hard work of development, the hardest part 

has been avoiding contamination by patented genes in our neighbor’s GMO corn planting. We 

have to wait until they've planted, then wait a few weeks to sow our own corn [to avoid cross 

pollination] ...If they are late in their sowing, there may not be enough time left for us to get a 

crop, and we may miss a year of development and selection.”75 

The PVP system provides for research and breeding exemptions. These exemptions allow the 

use of a protected variety for continued breeding or research, without prior authorization of 

the PVP holder. However, if this work results in a variety that falls under the category of 

“essentially derived variety (EDV),”76 commercializing the EDV requires the authorization of 

the PVP owner of the initial variety. The concept of EDV is currently under discussion at the 

international level within UPOV (see note on EDV on page 31).

In the modern seed industry, it is common for plant breeders to use multiple IP mechanisms 

to protect plant-related innovations. The exceptions under the PVP system can be 

superseded by the restrictions under the patent system, or by contract law in different forms 

of licensing agreements, such as bag tags or Material Transfer Agreements (MTAs). A bag tag is

an agreement that is printed directly onto seed packaging. Upon opening the seed package, 

the purchaser is deemed to have agreed to the terms of the bag tag, which may include 

restrictions on seed saving and use for breeding and research purposes. In some cases, it is 

difficult for plant breeders or researchers to access commercial seeds without bag tags, which

means that they are not able to take advantage of the breeding/research exceptions under 

74. Corteva, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural 

Inputs” (June 14, 2022), 4. www.regulations.gov/comment/AMS-AMS-22-0025-0053. 

75. Jason Myers-Benner, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs,” (May 15, 2022), www.regulations.gov/comment/AMS-AMS-22-0025-0027. 

76. “Essentially derived variety: (A) In general; The term "essentially derived variety" means a variety that— (i) is 

predominantly derived from another variety (referred to in this paragraph as the "initial variety") or from a variety 

that is predominantly derived from the initial variety, while retaining the expression of the essential characteristics 

that result from the genotype or combination of genotypes of the initial variety; (ii) is clearly distinguishable from 

the initial variety; and (iii) except for differences that result from the act of derivation, conforms to the initial 

variety in the expression of the essential characteristics that result from the genotype or combination of genotypes 

of the initial variety. (B) Methods; An essentially derived variety may be obtained by the selection of a natural or 

induced mutant or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, 

backcrossing, transformation by genetic engineering, or other method.” 7 U.S.C. § 2401
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the PVP law. The PVP variety may also be an inbred used to produce a commercial hybrid. The 

inbred would not be commercially available, necessitating that the plant breeder request 

seed from the PVP holder, who may decline to provide it or only provide it with an MTA that 

does not allow breeding activities. Altogether, this means that PVP certificates can be, and 

often are, coupled with licensing restrictions that enable them to function in essentially the 

same ways as utility patents. In contrast, when Congress passed the PVP Act,77 any 

commercialized seed with a PVP certificate would have immediately been available for 

breeding, because plant breeders could purchase commercial seed without additional 

restrictions. Several commenters noted that such restrictions increasingly narrow the 

available working gene pool and limit plant breeders’ ability to innovate.78

Continued innovation: Access to protected varieties and traits 

after IP rights expire

Essential to a balanced IP system is that most formal methods of IP expire (with the exception 

of trade secrets and trademarks), after which the claimed innovation becomes part of the 

public domain. While farmers and plant breeders can legally use varieties and traits that are 

no longer protected by IP rights, we heard from commenters that there may be difficulty in 

accessing seed if a firm has taken these varieties off the market, or if they are restricted with 

other IP or licenses from the original owner. 

In the case of PVP varieties, the issue of seed access after the expiration of the PVP certificate 

was addressed in the enabling legislation. Upon receiving a PVP, the applicant deposits seeds 

in the USDA-National Plant Germplasm System (NPGS), where seed is maintained for the 

duration of the PVP, and then multiplied for distribution for any research and breeding 

purpose. When the PVP certificate on a protected variety expires, the NPGS distributes 

research quantities of seed to plant breeders who request it. This is a distinct feature of the 

PVP system, which offers access to ex-PVP seeds in the public domain, even if the company 

that originally commercialized the variety has removed it from sale. This is also a unique 

aspect of the U.S. system, and one that commenters said was a critical advantage to the PVP 

system over similar systems in other countries. There is widespread support for the U.S. PVP 

system and for NPGS serving this role, and many commenters noted the excellent quality of 

NPGS services.

77. 7 U.S.C. 57

78. “This tendency to the narrowing of the working genepool of breeders is antithetical to the very core of 

productive and innovative plant breeding which depends on free access to genetic diversity.” Jack Kloppenburg, 

Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” (June 

15, 2022), 4, https://www.regulations.gov/comment/AMS-AMS-22-0025-0024; See also Deppe, Comment on 

“Competition” in “Freelance Plant Breeders,” 138: “An additional threat to the freedom to operate of freelance 

and other plant breeders is the increasing tendency of the major retail seed companies to sign or accept contracts, 

licenses, bag-tag agreements, and language on invoices from their major wholesale suppliers that put serious 

restrictions on seed.”
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While some patented varieties also have PVP certificates and are thus stored with the NPGS, 

some commenters in public comments and interviews mentioned that there may be logistical 

barriers to accessing off-patent germplasm that is not stored with NPGS.79 In the process of 

applying for a patent on biological material, applicants must deposit a sample of the claimed 

invention (in this case, seed samples) in an approved International Depository Authority (IDA)

or a depository recognized by the USPTO.

80 Some plant breeders we interviewed noted 

having received non-viable seeds from a depository which may not be as well-equipped as 

the NPGS to maintain the viability of deposited seeds, so that research samples, when 

distributed, do not always germinate. A facility equipped to maintain seed viability over long 

periods of time, followed by regeneration before distribution, would help facilitate the use of 

off-patent varieties and traits by distributing viable germplasm once a patent expires. 

Enhanced Transparency for a More Level Playing 

Field 

Some commenters noted that information about the specific IP mechanisms applied to each 

type of seed is diffuse and difficult to find. Because there is not a comprehensive source of 

information about different types of restrictions on specific seeds, people who are interested 

in working with or developing new varieties of seeds must resort to researching multiple 

sources to identify the different ways a variety might be restricted by IP, including the PVP 

database, patent databases (such as Patent PubSearch, Espacenet, or other third-party 

aggregators), and individual seed company websites.

Within certain crops or sectors with well-established norms, plant breeders may know what 

sources they need to check. The Texas Seed Trade Association wrote that “information 

concerning what is, and what is not, a protected variety is widespread and wellunderstood.”81 While it may be possible to determine whether a variety has a PVP, and 

varieties which are patented often come with a license agreement, some commenters stated 

that it is difficult to find information on which specific patents apply to a particular variety 

and reported significant challenges in accessing and navigating information on utility 

79. For example, “In the one case where I requested patented germplasm after the patent expired, the depository 

was unable to provide me with the germplasm. So if there is an improvement that needs to be made in the IPR 

[intellectual property rights] of germplasm, it would be that the depositories for germplasm must make the 

germplasm available as required by law.” Peter Baenziger, Comment Letter on “Competition and the Intellectual 

Property System: Seeds and Other Agricultural Inputs” (April 28, 2022), 2. www.regulations.gov/comment/AMSAMS-22-0025-0018: 

80. Article 7 of the Budapest Treaty of the World Intellectual Property Organization defines the criteria for 

acquiring International Depository Authority status. See also 37 C.F.R. 1.808 (a)(2) and MPEP 2403 Deposit of 

Biological Material [R-07.2015]. Currently there are only three IDAs in the United States. The American Type 

Culture Collection (ATCC) is the principal IDA for most crop seeds. The National Center for Marine Algae and 

Microbiota (NCMA) also accepts seed and plant tissue deposits. 

81. Texas Seed Trade Association, Comment Letter on “Competition and the Intellectual Property System: Seeds 

and Other Agricultural Inputs” (May 15, 2022), 2. www.regulations.gov/comment/AMS-AMS-22-0025-0023. 
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patents.82 During the public listening session held in August 2022, the executive director of 

the Heritage Grain Alliance stated: “One of our biggest problems...is that we find it 

impossible to get a list of the patented varieties that are available.”83 In her public comment, 

one freelance plant breeder described the situation as such: 

“There is often also no indication of the presence of a patent on the seed packaging or 

in the description of the variety in a seed catalog. There is often not even any 

information about the existence of a patent on the website of the breeder of the 

variety... Sometimes the patent applications refer to the variety only by internal firm

numbers or codes, and there is no mention anywhere of the name that the variety is 

actually to be sold to the public under. In these cases, even if a prospective plant 

breeder spends weeks looking up and reading patents on the crop of interest, there is 

no way they can tell whether the varieties they are hoping to use to breed from are 

patented or not.”84

One plant breeder interviewed for this report mentioned that companies might sometimes 

exploit the lack of transparency to extend the scope of their patent beyond what the 

application claimed. For example, some plant breeders we interviewed noted that companies

have acquired patents on traits such as disease resistances, then retroactively claimed to 

have IP rights on varieties that contain those traits, even though the varieties have been on 

the market for many decades. A plant breeder and founder of an independent seed company

commented that he has encountered bag tags on an heirloom variety that was not protected 

by any form of IP at all. He wrote that this practice, “in the absence of a publicly available list 

of patented varieties, creates the impression that ‘everything is patented’... This leads to 

people restricting their own fair use of public domain varieties, a kind of self-censorship, for 

fear of legal consequences.”85

Because there is a lack of clarity about which restrictions apply to certain varieties or traits, 

large companies can intimidate smaller companies or seed growers with fewer resources into 

licensing contracts or agreements that restrict rights to which they may be legally entitled. In 

their comments, the Organic Seed Alliance referenced an instance in which one large 

company had sent letters to hundreds of small companies, many of whom had not ever done 

82. For example, “Before beginning a breeding program, the breeder must undertake a study of whether the plant 

materials intended for use in the program are covered by IPR [intellectual property rights] encumbrances of some 

sort. This exploration of the parameters of “freedom to operate” are time, energy, and resource intensive and are 

a major disincentive for use of the material in question. The effect is to push breeders into silos in which they work 

only with material they already know to be unencumbered.” Kloppenburg, Comment on “Competition,” 4; See also 

Morton, Comment on “Competition,” 2: “I have grown a lettuce with IPR with the intention of offering it for sale, 

because I had no way to know the status of that variety. In each of these cases neither the catalog nor the 

packaging informed the seed “user” that collecting seed from the variety would be an IPR infringement.” 

83. USDA, “Listening Session on Competition and Intellectual Property Rights,” (August 24, 2022). 

www.zoomgov.com/rec/play/h4r0AJXwFkYRbfUr6zDMELCKte7_77Meo-W1fnl9VrbKFGdr0QIigqAovK4WqxAuiq8HDNkOnTPxXW8.WwQpath9AqKkafH_?continueMode=true.

84. Deppe, Comment on “Competition,” 2.

85. Morton, Comment on “Competition,” 2. 
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business with the sender, listing both granted and pending utility patent applications, stating 

that using traits claimed in any of the applications would be a violation of IP rights.86 Some of 

the patents listed covered only specific hybrids, although the list and letters were written in 

such a way that the broad traits given as patent titles might have confused seed growers 

without access to a patent attorney. As noted above, the USPTO under the Biden 

Administration is working to help those who are under-resourced have access to pro bono 

legal counsel.

Overlapping IP mechanisms become even more confusing to farmers, plant breeders, or retail 

buyers when manufacturers sell seed in bulk and retailers repackage it, if the agreements are 

not conveyed to subsequent purchasers. As noted above, identifiers used in commercial sale, 

such as variety names and numbers, may be different from those used in applications for 

utility patent protection, obscuring the link between the patent and the marketed product. 

Labeling and seed packaging from different companies marketing the same variety further 

complicates the search for intellectual property rights that apply to a particular variety. 

Many farmers plan to plant multiple varieties of the same crop to provide resilience in the 

event that any particular variety succumbs to environmental or pest pressures over the 

course of the season.87However, commenters wrote that it is sometimes difficult for farmers 

to verify that they are purchasing distinct varieties because of the way that commodity seeds 

are branded and marketed.

88One company might market their seeds under different brand 

names, which may be difficult to distinguish from the variety names of the seed, and which 

may be different from the company name of the seed retailer. The same variety might also be 

sold under different brand names by different retail companies, but it is difficult to find this 

information without a careful reading of the label on the seed bag. 

A 2021 report from the Farmers Business Network (FBN) found that about half of the corn and 

soybeans on the market are hybrids that have been “relabeled,” referring to single varieties 

that have been marketed under different brand names, such that the consumer may believe 

they are buying different varieties.

89 Some commenters pointed out that relabeling can be 

pro-competitive by giving farmers more retailer options, but only if it is easy for farmers to 

find the information about what companies and brands carry a particular variety in order to 

compare prices, quality, customer service, or other aspects of the brands when deciding 

86. Organic Seed Alliance, Comment on “Competition,” 17. 

87. Cathleen McCluskey and William F. Tracy, “Engaging Farmer Stakeholders: Maize Producers’ Perceptions of and 

Strategies for Managing On-Farm Genetic Diversity in the Upper Midwest,” Sustainability 13, no. 16 (2021), 

https://doi.org/10.3390/su13168843. See also, Dan Fromme, “Examine bag tag on seed carefully to avoid planting 

same hybrid,” CornSouth, (2020), https://cornsouth.com/production/examine-bag-tag-on-seed-carefully-to-avoidplanting-same-hybrid/.

88. See, for example, Organic Seed Alliance, Comment on “Competition,” 29-31 

89. AgDaily, “Seed Relabeling Report Highlights Transparency Gap,” AgDaily.com, (2021). 

www.agdaily.com/crops/seed-relabeling-report-highlights-transparency-gap. 
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which seed to buy. Others contend that the practice can also facilitate price discrimination.90

A company selling one variety might charge more in a different region, under a different 

brand. Further, several farmers and seed retailers noted that some companies selling 

commodity seeds list only the brand name (and not the variety) in the information sources 

that farmers use to make purchasing decisions, such as online catalogs. This means that a 

farmer may not discover the variety they purchased until the order arrives, as the variety 

identifier is only printed on the physical seed tag attached to the seed bag. In a survey

conducted by FBN, only 31% of member farmers believed they bought relabeled seed, while 

73% actually had.

91 The Organic Seed Alliance commented that the practice of relabeling 

serves to “bolster the illusion that diverse options [are] being maintained,” even when 

companies are consolidating or are reducing the diversity of choices available to the 

consumer.

92The practice, if not transparent to farmers, may also impede strategies to 

mitigate potential environmental risks by planting multiple varieties of the same crop.

93

Intellectual property rights offer significant incentives for investments in research and 

development but may also be used to hinder innovation in some instances. USDA and USPTO 

have crafted recommendations for relevant information sharing for examining patent and 

PVP applications and to increase outreach to the public to make the patent process and 

enforcement more widely understood. Still, not all of the issues presented here are under the 

jurisdiction of either agency. We heard significant concerns about consolidation of the seed 

and agricultural input industry and the effects of concentrated market power on farmers, 

independent plant breeders, and small seed companies. These concerns are explored in the 

next sections.

Recommendations On Intellectual Property 

Protections in The Seed Industry

The USDA is collaborating with the USPTO to help ensure that the IP system, while 

incentivizing innovation, does not unnecessarily reduce competition in seed and other 

agricultural input markets. Outlined below are a number of policy and program actions, some 

underway and others proposed here, to promote robust and reliable IP and enhance fair 

competition. 

90. “Additionally, there is evidence that seed companies wield their market power through price discrimination. 

For example, companies may label the same seed variety differently and offer different prices in different 

geographies and for different farms sizes.” National Farmers Union, Comment on “Competition and the Intellectual 

Property System: Seeds and Other Agricultural Inputs,” (June 15, 2022), 3. www.regulations.gov/comment/AMSAMS-22-0025-0064. 

91. AgDaily, “Seed Relabeling.”

92. Organic Seed Alliance, Comment on “Competition,” 29. 

93. McCluskey and Tracy, “Engaging Farmer Stakeholders,” Sustainability 13, no. 16 (2021), 

https://doi.org/10.3390/su13168843.7/5/2023 10:29:00 AM
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Farmer Seed Liaison. Under the America Invents Act of 2011, USPTO maintains a public input 

process where members of the public may submit to USPTO information regarding prior art 

that may be relevant to the USPTO’s determination of a particular pending patent application

that has been published and is publicly available. While farmers and plant breeders are 

theoretically capable of reviewing the USPTO’s docket, as a practical matter they have 

neither the time nor capacity to do so on a regular basis. With the invitation of USPTO, USDA 

will help fill that gap. AMS will develop a Farmer Seed Liaison which, as part of its role in 

implementing the recommendations in this report, can facilitate engagement of the USPTO 

with farmers and plant breeders. This initiative could help communicate to farmers and plant 

breeders the availability of public third-party input processes for patents and collect and 

transmit to USPTO relevant information from farmers, plant breeders, and other members of 

the public. This would not be a novel function for the USDA, which historically provided 

information to the USPTO for plant patent applications when requested. The USDA currently 

fulfills a similar role in other industries. The Transportation Services Division of AMS, under 

statutory authority from the Agricultural Marketing Act of 1946, represents the views of 

farmers and agricultural shippers before the transportation regulatory agencies, such as the 

Surface Transportation Board and the Federal Maritime Commission. The Farmer Seed 

Liaison can also facilitate outreach to farmers and plant breeders who may develop varieties 

but not want to pursue formal IP protection regarding how to submit public varieties to the 

National Plant Germplasm System (NPGS) for consideration of inclusion in the collection, 

which may result in better documented information available to the USPTO for prior art 

searches. Outreach activities could also expand current efforts to provide historically 

underserved and Indigenous communities with access to relevant resources and culturally 

significant accessions in the NPGS (discussed in Section 3). 

Partnership between USDA and USPTO. In working together on this report, USDA and USPTO 

recognized that there was much that the two could do together. To promote fairer 

competition and enhance their delivery of services to the public, USDA and USPTO propose to 

establish an ongoing Working Group on Competition and Intellectual Property. Within USDA,

this will be coordinated by the Farmer Seed Liaison. As currently envisioned, the agencies will 

explore taking a number of steps as follows. 

• Explore joint USPTO-USDA opportunities, including issuing requests for comments and 

hosting roundtables, for collecting broader stakeholder input from researchers, plant 

breeders, farmers, and others in the seed and agricultural input space. 

• Explore initiatives to enhance the quality of the patent examination process for 

innovations related to agricultural products and processes, including opportunities for 

enhancing prior art search capabilities and providing additional training and guidance 

to patent examiners. 

• Engage in a greater exchange of information regarding processes and procedures at 

USPTO and USDA, including providing joint training and informational sessions on IP 

protection for seeds, varieties, and other agricultural inputs.

• Collaborate on developing materials and conducting outreach to better educate plant 

breeders and farmers on IP protection and enforcement. 
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• Collaborate on initiatives that enhance the transparency of IP information on existing 

IP rights for agricultural-related innovations. 

• Engage with recognized depositories to assess availability and viability of patented 

and off-patented germplasm. 

• Conduct a comparative analysis of the protection and enforcement of seed and 

agricultural-related IP in the U.S. with other jurisdictions, including underlying policies 

and practices. In addition, the USPTO plans to conduct an analysis to evaluate whether 

additional initiatives or changes will strengthen our intellectual property system. 

• Consider and evaluate new proposals for incentivizing and protecting innovation in the 

seed and agricultural-related space, including the addition of research or breeding

exemptions for U.S. utility patents, to ensure that our IP laws continue to incentivize 

innovation without unduly delaying competition and new market entrants.

Enhance Transparency for Farmers. The USDA underscores that farmers and seed 

businesses should know the variety and brand of the seed they are purchasing. As part of 

USDA's and the Administration’s whole-of-government efforts to enhance transparency and 

promote fair competition across the supply chain, the USDA reiterates its commitment to the 

following measures:

• Enforce label requirements under the Federal Seed Act (FSA), to ensure that farmers 

have access to all legally required information at the earliest opportunity, usually at 

the time of purchase and no later than the commencement of shipment.

• Additionally, enforce false advertising provisions under the FSA to avoid 

representations that may claim or give the impression that seed brands add 

diversification for a grower when that representation is false or misleading. 

• Enhance the accessible filing of complaints and tips on problematic seed practices.
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2. Competition and Innovation

Many commenters agreed that a system that fairly protects IP is critical to continued 

innovation and investment in seed systems. Plant breeding is an endeavor that takes time 

and resources, and breeding companies need to be able to realize a return on this investment 

in order to continue to operate. However, a range of commenters noted that in the current 

market, which has experienced consolidation over the past several decades, companies may 

be extending their market power in a way that exceeds IP law’s careful balance between the 

rights of the inventor and the encouragement of invention for public good. These 

commenters are concerned that when there are only a few companies dominating closely 

related industries, those companies may leverage their IP rights in combination with market 

power to create barriers to competition. Numerous comments raised concern over both the 

vertical integration of seed supply chains, as well as the horizontal consolidation of seed, 

pesticide, fertilizer, and data platforms.94 In this section, we look at commenter concerns 

about their ability to operate in the seed market. This includes the terms of licensing 

technologies for commercial sale and access to technologies for continued research and 

breeding, both before and after IP protection expires. 

The seed sector is generally discussed as two distinct but broad markets: commodity crops 

and specialty crops. Commodity seeds are staple crops, such as corn, soy, and cotton that 

cover large acreage, and specialty crops are generally fruits, vegetable, and ornamentals 

grown on smaller acreages (see Glossary). Commodity crop seed markets have experienced 

more consolidation than specialty crop seed markets,95although there have been recent 

periods of consolidation in vegetable seed markets as well.96The increase in concentration in 

companies that produce genetically engineered crops is even more pronounced.97 For these 

companies, the impetus to consolidate is often attributed to the higher costs of 

biotechnological research and development, as well as the added cost of acquiring regulatory 

approval for genetically engineered traits. Genetic engineering also offers the potential for 

companies to combine products with commercial herbicide and pesticide platforms. Since 

94. For example, “The advent of integrated proprietary traits, seeds, and agrochemical systems has transformed 

the sector. Indeed, there is now less emphasis on competition in markets for seeds and traits and more focus on 

control of vertically-integrated markets for entire “systems.” The American Antitrust Institute, Comment Letter on 

“Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” (May 16, 2022), 1. 

www.regulations.gov/comment/AMS-AMS-22-0025-0034. See also Friends of the Earth, Comment on 

“Competition,” 1. www.regulations.gov/comment/AMS-AMS-22-0025-0057: “[T]ightly integrated platforms have 

locked farmers into using products from only a single platform, in many cases, and they give these few 

agrichemical companies unprecedented anticompetitive power in these markets.”

95. James M. MacDonald and John Crespi, “Concentration in Food and Agricultural Markets,” in Handbook of 

Agricultural Economics, vol. 6 (Elsevier, 2022), 4781–4843, https://doi.org/10.1016/bs.hesagr.2022.03.003.

96. For example, in its analysis of the Bayer - Monsanto merger in 2018, the Department of Justice noted that at 

the time, the two companies controlled 94% of the carrot market and 90% of the market for cucumber seeds. 

Crespi and MacDonald, “Concentration,” 4805. 

97. “For GM traits, market concentration appears much higher than for seed markets. While several medium-sized 

regional players are active in seed markets, the market for GM traits is dominated almost exclusively by large 

multinational firms.” OECD, Concentration in Seed Markets, 150. 
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the early 1990s, when the first genetically engineered traits were introduced to the seed 

market, over 200 companies selling commodity seeds were either acquired or went out of 

business.98 The Organization for Economic Co-operation and Development (OECD) estimates 

that in 2016, four companies controlled 91% of the U.S. market value in cotton seed, 82% in 

maize seed, and 69% in soybean seed markets.

99 

Several studies have characterized the consolidation of patent ownership. For example, 

Pardey et al. considered the cumulative percentage of IP rights held by a given number of 

applicants over the period from 1930 – 2008 to demonstrate an increasing concentration of 

varietal rights applications.

100 Clancy and Moschini updated this data to quantify utility patent 

and PVP ownership on varieties from 2011 – 2015, noting that, at the time, DuPont (now 

Corteva) owned over half of all PVP rights for maize and soybean varieties, and 39% and 30% 

of utility patents for maize and soybean varieties, respectively.

101 At the time, Monsanto (now 

Bayer), owned around 30% of PVPs and nearly half of all patents for maize and soybean 

varieties.

102This research indicated that at the time, even before the major mergers of Dow/ 

DuPont and Bayer/ Monsanto, the top two companies held around 80% of all patents and PVP

rights for maize and soybean varieties. 

To our knowledge, there has been no consistent analysis of IP ownership that considers both 

protections on new varieties and patent protection on traits, gene sequences, marker 

identification, and breeding methods. We undertook an analysis to estimate seed company 

ownership of granted Plant Variety Protection (PVP) certificates and patents mentioning crop 

names in the abstract or title from 1970 – 2022 (see Appendix B for methods).103 Our results 

show that the top four companies dramatically increased their share of IP ownership since 

the 1990s (Figure 3). For example, for corn, the top four companies owned 41% of IP in 1990, 

with Pioneer making up 38%. By 2000, this share had increased to 77% with Pioneer acquired 

by DuPont (33%) and Monsanto emerging as a significant IP owner (26%). In 2010, top four 

ownership increased to 93%. Today, the top four (Bayer, Corteva, ChemChina and BASF) own

97% of canola, 95% of corn, 84% of soybean, 51% of wheat, and 74% of cotton IP. Bayer owns 

the highest percentage of utility patents, including 71% of corn patents, while Corteva owns 

the highest percentage of PVP certificates, including 53% of corn PVPs. 

98. Philip H Howard, Concentration and Power in the Food System: Who Controls What We Eat?, Revised Edition 

(Bloomsbury Academic, 2021), 109. 

99. OECD, Concentration in Seed Markets, 119-128.

100. Philip Pardey et al., “The Evolving Landscape of Plant Varietal Rights in the United States, 1930-2008,” Nature 

Biotechnology 31, no. 1 (January 2013): 25–29. https://doi.org/10.1038/nbt.2467. 

101. Clancy and Moschini, “Intellectual Property Rights and the Ascent of Proprietary Innovation,” 68. 

102. Clancy and Moschini, “Intellectual Property Rights and the Ascent of Proprietary Innovation,” 68.

103. We included the following patent types in our analysis: PVP, utility, plant, design, or other patents. PVP and 

utility patents accounted for more the vast majority—more than 95 percent—of IP for canola, corn, cotton, forage, 

soybean, and wheat certificates analyzed.
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Figure 3 on following page: Estimated firm ownership of PVP and patent certificates from 1980 

– 2020 by crop. For canola, Corteva owns 65% of IP, followed by Bayer (22%). For corn, Bayer 

owns 57% of IP, Corteva owns 28%, and ChemChina owns 10%. For forage, non-top-five

companies own 53%. For soybean, Corteva owns 33%, Bayer owns 43%, and ChemChina owns 

7%. For wheat, Corteva owns 23%, Bayer owns 17%, and ChemChina owns 11%. The width and 

color of each rectangular panel represents the number of certificates and parent firm name, 

respectively. Years shown signify the 5-year interval: for example, 2020 refers to 2018 through 

2022. Ribbons that connect firm names from year to year represent the transfer of IP: if the 

labeled firm name and color remains the same from one year to the next, the firm retains the IP; 

if the firm name changes and the ribbon color is the light green shade, the new labeled parent 

firm has acquired the IP. See Appendix B for detailed methods. Companies with certificate 

counts that total the top four for all time are labeled with their firm name while the rest are 

labeled “Not Top Four.”
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In the past, some scholars have reasoned that while prices remain low and mergers maintain or 

increase system efficiency, consolidation can represent a benefit to the public.104 Other scholars have 

renewed interest in different ways to measure the effects of concentration, especially as it increases 

or decreases competition, innovation, and structural inequalities.105 While there are many analyses 

of the impacts of concentration on prices, there has been less research on the impact of 

concentration on innovation.106 If increased concentration causes newly merged companies to 

consolidate breeding programs to serve higher volume seed markets, regional specificity may be lost 

in some geographic areas or crops. In the case of seeds, varieties are not interchangeable among 

regions. Focusing on seed prices exclusively may fail to capture differences in seed quality in terms of 

factors such as regional adaptation, market differentiation, or the benefit of diversity per se, (i.e., 

having choices available for farmers to plant multiple adapted varieties to manage within-season 

risk on their farms). These factors look to the potential revenue that farmers can make, or not make, 

from the crop based on the choice of seeds to which they have access.

In 2012, USDA-Economic Research Service studied growing concentration in agricultural input 

markets since the 1990s.

107The report noted that fewer companies are responsible for the 

innovations that enter the market. In this sense, the presence of fewer decision makers may narrow 

the scope of inquiry and innovation in the market. In addition, the report described how larger 

companies increased their spending on R&D as they raised prices for farmers, which reflected, at 

least in part, the improved quality and productivity of the new varieties they developed. The report 

also questioned whether, under the current market and policy environment, increased economies of 

scale in crop biotechnology may imply that “only very large companies can hope to compete in these 

sectors.”108 Taken together, the increased concentration and economies of scale for dominant

companies may pose significant barriers to entry for small and medium-sized enterprises and reduce 

innovation. 

104. See, e.g., Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself. (New York: Basic Books, 1978). 

105. Lina Khan, “The New Brandeis Movement: America’s Antimonopoly Debate,” Journal of European Competition Law & 

Practice 9, no. 3 (March 1, 2018): 132, https://doi.org/10.1093/jeclap/lpy020.

106. MacDonald and Crespi, “Concentration in Food and Agricultural Markets,”7/5/2023 10:29:00 AM 4823.

107. Keith Fuglie et al., “Rising Concentration in Agricultural Input Industries Influences New Farm Technologies,” Amber 

Waves, 2012, https://doi.org/10.22004/ag.econ.142404. 

108. Keith Fuglie et al., “Rising Concentration,” 2012.
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Representative types of companies in the seed industry 

The seed industry is complex and there is no standard type of business enterprise. However, there 

are some representative types of companies which fill different roles. Appendix C provides graphical 

representations of these types of companies. 

Some companies are vertically integrated, from the beginning of the breeding process to the delivery 

of seed directly to farmers. Most of the dominant industry players fall in this category and sell some 

proportion of their seed to farmers either directly or through exclusive licenses with branded 

retailers. Many of these companies are also horizontally integrated with other agricultural input 

enterprises. They also license varieties (and sometimes germplasm) and traits to other entities 

within the seed industry. There are also companies and public institutions that specialize in the 

development of varieties (cultivar developers) or traits (trait developers) and then license these to 

other seed businesses for commercialization. These are all different types of plant breeding 

companies.

There are seed businesses that do not have their own breeding programs, but instead license 

varieties and patented traits from breeding companies. These businesses receive stock seed and 

scale production, clean and condition the seed, apply seed treatments (which may also be licensed if 

proprietary), and package the seed for farmers. They may then either sell seed directly to farmers or 

sell it to other retailers. These companies are usually referred to as seed dealers. Seed dealers 

typically test new varieties from breeding companies to determine which varieties they would like to 

license. Some seed dealers also test new hybrid combinations (licensing inbred lines of a crop like 

corn from breeding companies), but this is declining as breeding companies increasingly prefer to 

license finished hybrids and not inbred lines. Seed dealers must forecast demand and contract with 

specialized seed farmers for seed production the year prior to offering the seed for sale 

commercially. After the seed harvest, they are responsible for cleaning, conditioning and quality 

testing the seed in order to sell it to farmers the following spring. They are usually responsible for the 

risks associated with seed production and unsold inventory. The seed dealership model is more 

common in commodity crop sales than other types of crops. However, even in commodity sales, 

dealers are being increasingly replaced with branded retailers. Branded retailers carry seed and 

other inputs from a single breeding company rather than testing and carrying varieties and other 

inputs from several breeding companies.

Other seed businesses may primarily purchase commercial seed wholesale from breeding 

companies or seed dealers and offer it for retail sale to farmers. These types of businesses are 

typically called seed retailers. This is a more common model for vegetable crops, and vegetable seed 

retailers typically also test many different varieties from different breeding companies and decide 

what to purchase for their customers.
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Increased Prices are Felt Acutely by Independent Small 

to Mid-Sized Companies 

Industry leaders contend that as costs for research and development have risen, especially with the 

widespread adoption of genetic engineering in commodity crops, mergers have allowed businesses 

to invest in variety improvement while keeping prices relatively low.109 Indeed, innovations by major 

companies have led to increased yields, which many farmers understand to be commensurate with 

the increased prices resulting from private investment.110 In their public comment, the American 

Seed Trade Association notes that the cost of bringing a new genetically engineered trait through the 

research, development, regulatory and commercialization process is significant—estimated at about 

$115 million.111 A single trait may then be incorporated into many varieties for sale to farmers. For 

some farmers, “the yields of modern seeds easily justify the cost of seed.”112While seed prices rose 

around 700% for genetically engineered crops and around 218% for other field crops between 1990 

and 2013,

113 the new varieties increased farm productivity by billions of dollars annually.114 However, 

as research and development in agricultural inputs has become increasingly dominated by the 

private sector, economists note that “much of benefits from private R&D may not accrue to the farm 

sector at all but accrue as profits to the input supply industries.”115A recent study shows that farmers 

retain less than half of the surplus revenue generated by genetically engineered varieties, with the 

majority of the surplus revenue accruing to the companies that originate those varieties.

116

While some may consider increased seed prices to be justified by improvements in the seed, others 

note that farmers see little price transparency due to the complex nature of technology licensing 

agreements that dictate the price of genetically engineered traits in seeds. The American Antitrust 

Institute wrote that these “technology fees, which in the past were a line item on the bill, are now 

rolled into the total cost of the seed.”117 The Independent Professional Seed Association (IPSA) stated 

that their members, who do see these technology fees, pay separately for individual traits and 

varieties from dominant companies. They then often compete directly with the branded retailers of 

109. For example, “Pricing in the agricultural input marketplace is competitive, reflecting the increased value that farmers 

receive from technology innovations delivered as a result of significant investment in technology advancements and 

testing,” Corteva, Comment on “Competition,” 4. 

110. “The relative stability of seed prices contrasts with the tremendous value gained by farmers from planting 

professionally-produced improved varieties.” American Seed Trade Association, Comment on “Competition,” 4. 

111. American Seed Trade Association, Comment on “Competition,” 7. Data on the return on this investment in terms of 

revenue generated by a commercialized genetically engineered trait is not provided.

112. Boyce Kluting, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural 

Inputs” (May 15, 2022), 4. www.regulations.gov/comment/AMS-AMS-22-0025-0031.

113. USDA Crop and Seed Price Index from NASS; Crop-specific seed prices from USDA NASS for 1990-2015 (after which 

NASS discontinued its seed price series) and extended over 2016-2020 using USDA ERS Cost-of-Production estimates. 

114. Federico Ciliberto, Giancarlo Moschini, and Edward D Perry, “Valuing Product Innovation: Genetically Engineered 

Varieties in US Corn and Soybeans,” The RAND Journal of Economics 50, no. 3 (Fall 2019): 615–44. 

115. Keith Fuglie et al., “Research, Productivity, and Output Growth in U.S. Agriculture,” Journal of Agricultural and Applied 

Economics 49, no. 4 (November 2017): 533, https://doi.org/10.1017/aae.2017.13. In this paper, “input supply” refers to 

industries that “provide seeds, chemicals, machinery, etc.”

116. Ciliberto, Moschini, and Perry, “Valuing Product Innovation,” 640.

117. The American Antitrust Institute, Comment on “Competition,” 13. 
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the same companies and have had to absorb the brunt of the increased cost.118Seed businesses are 

fairly diverse in their strategies and may combine different stages of the development-to-delivery 

process (page 47). The degree to which seed businesses are affected by IP is dependent on the stages 

of development in which they are involved. 

Loss of Independent Small to Mid-Sized Companies 

Raises Concerns about Farmer Choice and Access to 

Independent Product Information

Commenters noted that the increase in royalties paid by licensees is only one explanation for the 

loss of independent retailers. They also raised concerns about the licensing of IP. The number of 

independent seed dealers that test their own hybrid combinations or have some small variety 

development programs in-house has declined significantly in recent decades. During the same 

period of time, commodity farmers have increased their use of patented, genetically engineered 

seed traits. Because those seeds traits are owned by very few companies, seed dealers do not have

very many breeding companies to choose from when licensing these traits and varieties. Therefore,

breeding companies have power to dictate terms which may be unfavorable to independent dealers.

For example, the Independent Professional Seed Association (IPSA) commented that in order to 

license patented traits and varieties, “companies like ours must provide a multinational corporation 

with a list of all our customers, (complete with addresses), the amount of seed purchased by product 

for each customer, as well as our complete company financials. After giving them all our company 

information, we need to try to compete against their company and owned brands.”119 This creates a 

situation in which the licensor knows the licensee’s costs and profit margins, as well as complete 

information on their market and customers. In another example, IPSA also notes that independent 

seed dealers must accept licensing contracts from a dominant firm before being told the royalty 

amounts they will pay, a transaction that sometimes happens entirely over the phone.120 They may 

not find out these amounts until they have already started seed production for the following season 

with licensed material and cannot change their course of action.121

Some commenters raised the concern that dominant market players can exercise power over 

independent retailers by threatening to deny them a license should the retailer behave in a manner 

contrary to the interests of the licensor, such as by trying to combine traits from one firm with 

germplasm from another or selling generic chemical inputs with seeds that incorporate patented 

traits. A comment submitted by Cape Law Firm, which represents clients in the input industry, states 

118. “In recent years, our corn genetic royalties per unit have doubled and recently our corn trait royalties are going up 

significantly even on older technologies that are soon going off patent... This year we are bracing for the highest trait 

increase we’ve ever seen.” Independent Professional Seed Association, Comment on “Competition,” 17. 

119. Independent Professional Seed Association, Comment on “Competition,” 6. 

120. “Such programs can be handled entirely over the phone, without a paper trail and can make or break profitability yearover-year.” Independent Professional Seed Association, Comment on “Competition,” 6. 

121. “Bayer doesn’t tell us what prices we will be charged before seed stock is planted each year for next year’s sales.”

Independent Professional Seed Association, Comment on “Competition,” 17. 
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that “licensees live in constant fear of the prospect of license termination, an event which can (and 

has) [brought] about the end of a licensee’s business.”122 IPSA’s public comment also noted that 

“because of the dominant position on the corn side of the business, losing a license can push 

independents out of business.”123

We also heard from a number of interviewees that farmers’ options may be constrained in certain 

geographic regions based on local regulations or on the technology adoption of neighboring 

farmers, leading to even fewer licensing choices or opportunities for independent retailers. For 

example, according to seed dealers interviewed for this report, the extensive use of crops tolerant to 

volatile herbicides has led some farmers to plant these tolerant crops not necessarily because the 

varieties are superior, but because planting herbicide-susceptible seeds carries an unacceptable risk 

of having crops damaged by volatilized herbicides from neighboring sprayers. The Center for Food 

Safety wrote that “besides the costs of resistant weeds, herbicide-resistant crop systems are 

inherently anti-competitive, in that they force farmers to buy these crops, where available, in selfdefense, or suffer the drift-damaging consequences.”124 Although there has been no systematic data 

collection on the subject, the Environmental Protection Agency (EPA) assumes that such “defensive” 

planting has contributed some portion of the rapid adoption rates for dicamba-tolerant seeds,125

which accounted for 43% of all soybean acres in 2018,126 and about 66% of all planted acres in 

2020.127 The rapid increase in use may also impact the development of alternatives. For example, 

some companies may not be able to successfully commercialize a new variety in some regions unless 

it has the tolerance trait, unless they obtain a license from the primary tolerance trait owner. 

One of the most recurrent concerns raised in public comments described exclusion payments, which 

encourage seed dealers and their customers to buy more of the breeding company’s patented 

products. IPSA described a bundling program that combines corn genetics and traits with soybean 

genetics and traits. To obtain the manufacturer’s financial incentives for corn, seed dealers must

also meet benchmarks for soybeans.128 These payments, which are often unwritten and not 

transparent, bring up concerns about exclusive dealing, which can violate antitrust law if its effect is 

122. Cape Law Firm, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural 

Inputs,” 10. www.regulations.gov/comment/AMS-AMS-22-0025-0062.

123. Independent Professional Seed Association, Comment on “Competition,” 6. 

124. Center for Food Safety, Comment on “Competition,” 10. 

125. Environmental Protection Agency, “Dicamba Use on Genetically Modified Dicamba-Tolerant (DT) Cotton and Soybean: 

Incidents and Impacts to Users and Non-Users from Proposed Registrations,” EPA-HQ-OPP-2020-0492-0003. (2020), 43-

45. https://www.regulations.gov/document/EPA-HQ-OPP-2020-0492-0003. 

126. Seth J Wechsler et al., “The Use of Genetically Engineered Dicamba-Tolerant Soybean Seeds Has Increased Quickly, 

Benefiting Adopters but Damaging Crops in Some Fields,” Amber Waves, (USDA-ERS), October 1, 2019).

https://www.ers.usda.gov/amber-waves/2019/october/the-use-of-genetically-engineered-dicamba-tolerant-soybeanseeds-has-increased-quickly-benefiting-adopters-but-damaging-crops-in-some-fields/.

127. Environmental Protection Agency, “Status of Over-the-Top Dicamba: Summary of 2021 Usage, Incidents and 

Consequences of Off-Target Movement, and Impacts of Stakeholder-Suggested Mitigations,” EPA-HQ-OPP-2020-0492. 

(2020), 10-11, https://www.regulations.gov/document/EPA-HQ-OPP-2020-0492-0021. 

128. “Since 2018, Bayer introduced a bundling program that combined corn genetics and traits with soybean genetics and 

traits. For Independent Seed Companies, it meant they no longer had financial incentives just for selling more corn, now 

they had to sell more soybeans as well, or they would lose their incentives on corn,” Independent Professional Seed 

Association, Comment on “Competition,” 5. 
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to unreasonably restrain trade or function as an unfair method of competition, for example. The 

Open Markets Institute noted that in a 2018 survey of over 950 U.S. farmers, “44% reported that one 

or more of their seed retailers or distributors had switched to offering seeds from just one 

manufacturer in the five years before the survey.”129Pivot Bio, a company that offers a microbial 

alternative to synthetic fertilizer, expressed difficulty entering the market due to these programs: “By 

creating incentives, rebates, discounts and other incentives, [input manufacturers] attempt to box 

out competition and protect brand loyalty. These marketing programs are expanding to now include 

seed, fertility, and sustainability programs. Again, these new sustainability bundles will further block 

grower choice around sustainability by not allowing mixing and matching practices and products 

that best serve a farming operation’s unique needs.”130

Independent seed companies are an important component in a competitive seed market. 

Historically, these providers have independently evaluated varieties to build out their product 

offerings, and have competed on seed prices and quality to ensure that farmers were offered the 

best varieties for their region and production system. Some independent field trial networks (which 

do not sell seed) remain, both public and private. However, they do not cover all regions or crops, 

and originating companies determine the varieties which should be compared. The rising cost to 

enter such trials is borne by the companies themselves, which may represent a barrier to entry for 

emerging competitors. 

Potential Loss of Innovation Due to Changing IP 

Landscape and Reduction of Small to Mid-Sized 

Businesses

Plant breeding is a resource-intensive endeavor that demands significant investment in order to 

innovate. The American Seed Trade Association, which represents both small and large seed 

companies, wrote that its members spend, on average, 15% of revenue on R&D,131a rate much higher 

than that of other industries.132 Some commenters claim that these expenditures are made possible 

by the increasing concentration of technology assets that mergers provide, and that sustained 

investments in research and development are evidence that companies continue to innovate even 

after merging. For example, Bayer wrote that “the combination of Bayer and Monsanto brought 

together world-class expertise and capabilities in biologics, breeding, chemistry, data, germplasm, 

129. Open Markets Institute, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs” (May 16, 2022), 5. www.regulations.gov/comment/AMS-AMS-22-0025-0033, citing Maurice E Stucke 

and Allen P Grunes, “An Updated Antitrust Review of the Bayer-Monsanto Merger,” (The Konkurrenz Group, 2018).

130. Pivot Bio, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” 

(June 14, 2022), 2. www.regulations.gov/comment/AMS-AMS-22-0025-0052. 

131. American Seed Trade Association, Comment on “Competition,” 7.

132. OECD, Concentration in Seed Markets, 37. 
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and other agricultural disciplines.” 133Merger proponents often argue that such combinations create 

efficiencies and reduce redundancies in research. However, recent studies from the Federal Reserve 

show that merger and acquisition activity across all U.S. industries in general is associated with an 

increase in consumer prices, but not with increases in productivity or efficiency.134

Recent discussion from USDA Economic Research Service (ERS) noted that “there is good reason to 

think that increases in concentration do not persistently lead to greater incentives to innovate; 

rather, beyond some high level of concentration, further increases could actually reduce the 

incentive to innovate.”135ERS has also concluded that increasing levels of concentration, as large 

companies merge with large companies, has not had much effect on the average intensity of 

industry R&D.

136 A study on the effects of patent ownership and innovation noted that when 

measuring R&D by new varieties released, mergers do not seem to have a significant effect on the 

production of new varieties.137 As noted below, the quantity of varieties released alone, without a 

measure of the quality or distinctiveness of those varieties, is not a perfect measure of innovation 

rates. Still, these points, taken together, question whether increased concentration always results in 

more effective and efficient investments in innovation.

Importantly, the overall high level of investment in research and development is in part due to the 

biological nature of seed innovation. Evolving pests and diseases mean that varieties can relatively 

quickly fail to perform as well as they did when they were first released. For example, varieties 

succumb to pressures such as new diseases spreading internationally or changing pest pressure due 

to warmer winters. These are often regionally specific; therefore, it is important to look not only at 

overall R&D spending in comparison to other industries, but the diversity of focus areas within R&D 

programs, and whether key areas of concern for farmers are being addressed.

The vertical and horizontal integration of the seed and agricultural input industries also presents 

challenges for sustaining R&D investment and for new entrants into these markets. When genetic 

engineering technology was first introduced to the market, different companies competed in 

different parts of the seed development industry. Some companies were dominant in genetically 

133. Bayer, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” 

(June 14, 2022), 1. www.regulations.gov/comment/AMS-AMS-22-0025-0051; See also Corteva, Comment on 

“Competition,” 2: “The merger of the agricultural companies of Dow AgroSciences and E. I. du Pont de Nemours & Company 

into Corteva Agriscience has resulted in a more effective global competitor that has immediately provided new and 

innovative products in the marketplace."

134. Bruce A. Blonigen and Justin R. Pierce, “Evidence for the Effects of Mergers on Market Power and Efficiency,” Finance 

and Economics Discussion Series 2016, no. 082 (October 2016), (Washington: Board of Governors of the Federal Reserve 

System), https://doi.org/10.17016/FEDS.2016.082.

135. James MacDonald, “Mergers and Competition in Seed and Agricultural Chemical Markets.” Amber Waves, 2017. 

https://www.ers.usda.gov/amber-waves/2017/april/mergers-and-competition-in-seed-and-agricultural-chemical-markets/

136. Keith Fuglie, Paul Heisey, John L. King, Kelly Day-Rubenstein, David Schimmelpfennig, Sun Ling Wang, Carl E. Pray, and 

Rupa Karmarkar-Deshmukh, “Research investments and market structure in the food processing, agricultural input, and 

biofuel industries worldwide,” USDA-ERS Economic Research Report 130 (2011):15.

137. H. Phoebe Chan, “Do Firms with Larger Patent Portfolios Create More New Plant Varieties in the U.S. Agricultural 

Biotechnology Industry?” Economics of Innovation and New Technology 20, no. 8 (November 2011): 749–75. 

https://doi.org/10.1080/ 10438599.2010.531915.
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engineered traits and others were dominant by holding access to high-quality germplasm. These 

companies then licensed technologies to other companies such as seed dealers. The American 

Antitrust Institute commented that such rivalry in agricultural biotechnology innovation is “essential 

for maintaining incentives to continue existing and prospective product development programs.”138

Increasing concentration, especially as companies have come to own both germplasm development 

programs and IP rights on genetically engineered traits, makes it even more difficult for small and 

medium companies to enter the market. 

Companies can enter cross-licensing agreements for access to IP that they do not own.In some ways, 

cross-licensing can be seen as a pro-competitive alternative to mergers and acquisitions. When 

competing companies need access to traits or germplasm in order to innovate, cross-licensing 

allows companies to access other IP without having to buy the competition outright.139 In their 

public comment, KWS Seeds wrote that cross-licensing “support[s] even greater access to innovative 

technologies.”140 However, some have noted that companies negotiate these licensing agreements 

by offering to trade access to different IP rights that are comparable in value.141 Small companies and 

independent plant breeders who are not a part of the network of dominant companies and do not 

have valuable patents to trade may face significant licensing costs which represent a barrier to entry. 

Competition agencies have noted that while cross-licensing has the potential to generate significant

efficiencies, they may also generate anticompetitive effects such as the foreclosure of innovation or 

the facilitation of market division.142

As a note, some commenters pointed to the increasing number of patents on plants as evidence that 

innovation has not stagnated. However, according to several interviewees, a company’s primary 

motivation to pursue patents may not primarily be to protect the company investment in particular 

genetics or traits, but rather to build up an IP portfolio whose size and scope in and of itself is 

attractive to investors or useful for cross-licensing. In this way, it is difficult to conclude that an

increasing number of patent rights on plants necessarily advance overall innovation without

analyzing the contents of the patent claims. Some commenters wrote that companies may focus 

research in areas where they are able to make incremental, protected improvements on existing 

patentable material rather than investing in new lines of research.143

Finally, a primary concern voiced by many commenters, especially those that represent farmers, is 

that the absence of a seed saving exemption in an IP-dominated seed system removes an important 

138. The American Antitrust Institute, Comment on “Competition,” 12.

139. Clancy and Moschini, “Intellectual Property Rights and the Ascent of Proprietary Innovation,” 68. 

140. KWS Seeds, Comment on “Competition,” 2. 

141. Ioannis Lianos and Alexey Ivanov, “The Global Seed Market, Competition Law and Intellectual Property Rights: Untying 

the Gordian Knot,” Concurrences: Competition Law Review 2, (2016): 72, https://doi.org/10.2139/ssrn.2773422.

142. U.S. Department of Justice and Federal Trade Commission, “Antitrust Enforcement and Intellectual Property Rights: 

Promoting Innovation and Competition,” (2007), 8. www.ftc.gov/sites/default/files/documents/reports/antitrustenforcement-and-intellectual-property-rights-promoting-innovation-and-competition-report.s.department-justice-andfederal-trade-commission/p040101promotinginnovationandcompetitionrpt0704.pdf.

143. For example, “Increasingly privatized research and development (R&D) favor defensive research that guards corporate 

profits over risky innovation into the new, more sustainable production systems the world needs to meet global food 

demand in the face of climate change.” Open Markets Institute, Comment on “Competition,” 1. 
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driver of innovation from the system. The National Family Farm Coalition wrote: “In the context of 

user-innovation, agriculture has been a field where farmers substantively contributed to developing 

and improving existing and new plant varieties.”144 Proponents of farm-saved seed argue that such 

practices also provide an important impetus for seed firms to innovate, as those companies had to 

regularly introduce valuable genetic improvements that would incentivize farmers to return to the 

market to purchase new seed, rather than save the previous year’s seed. The National Farmers Union 

also argues that even while genetically engineered varieties, which cannot be developed in the field, 

have delivered benefits to many farmers, an outsize focus on such technologies has “also reduced 

farmers choice of seeds, including for conventional and locally and regionally adapted options.”145

Public Availability of Patented Innovations after IP 

Protection Expires 

An important feature of the IP system is that after a patent expires, the patented material enters the 

public domain. However, some commenters described factors that delay competition from 

companies using off-patent material, including anti-competitive practices leveraged by patent 

holding companies, plant breeders’ inability to access unrestricted germplasm from public 

depositories, and regulatory burdens which may represent a barrier to entry for genetically 

engineered varieties.

Patent-holding firms may delay competition after patents have 

expired

Commenters stated that patent holders may engage in conduct that may inappropriately extend

exclusivity beyond the life of their patent. For example, the Breakthrough Institute commented that 

“some companies use reach-through clauses in licensing and Material Transfer Agreements (MTAs) 

that lay claim to inventions developed using the material, or to the material itself after the patent 

has expired.”146 In addition, commenters have described licensing schemes that effectively remove 

seed from the market when it is set to come off-patent, prohibiting would-be innovators or generic 

growers from accessing the seed.147 

Some commenters also allege that patent-holding firms are able to extend exclusivity beyond the life 

of their initial patents by making minor modifications to the original patent claims and re-filing the 

application, in a process known as “evergreening.” According to a comment from the Breakthrough 

144. National Family Farm Coalition, Comment Letter on “Competition and the Intellectual Property System: Seeds and 

Other Agricultural Inputs” (June 15, 2022), 7. www.regulations.gov/comment/AMS-AMS-22-0025-0066. 

145. National Farmers Union, Comment on “Competition,” 2. 

146. Breakthrough Institute, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other 

Agricultural Inputs” (May 16, 2022), 4. www.regulations.gov/comment/AMS-AMS-22-0025-0038.

147. One example of this is BASF’s LibertyLink (LL), a patented gene that provides tolerance to the herbicide glufosinate. As 

the patent is set to expire in 2023, BASF has executed a strategy to remove those seeds from the market that includes 1) 

allowing LL licenses to expire in 2021, 2) prohibiting all production of the seed in 2022, and 3) requiring sell-off and disposal 

of all unsold seed inventory as grain, such that when the patent expires in 2023, a generic seed supply will not exist. See 

Cape Law Firm PLC, Comment on “Competition,” 3. 
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Institute, “these variations can include only slight changes that do not effectively improve the quality 

or functionality of the product.”148 Minor modifications may be patentable if they meet the statutory 

requirements of novelty, non-obviousness and utility. In this case, the expired patented invention 

should be available for public use.

In the seed industry, there are genetically engineered traits that have come off-patent which could 

potentially be used for the development of generic products. However, there have been barriers to 

the development of generics including difficulty accessing traits in germplasm without other patents

and difficulty gaining regulatory approval for new combinations of off-patent traits. In addition, the 

growing herbicide tolerance of weeds, and the evolution of insect resistance to some plant 

incorporated protectants means that the deployment of these off-patent traits must usually be done 

in combination with other control mechanisms or additional herbicide tolerance traits or plant 

incorporated protectants, which have largely been developed by the currently dominant firms.149 We 

also heard concern that farmers are not able to select only the traits they want or need, but usually 

must select from a limited number of combinations which may include traits that they cannot use.150

The addition of newly-patented traits to that combination may also function to block access to the 

older, off-patent traits. 

Plant breeders encounter difficulty accessing off-patent seed from 

public repositories

As described above, plant breeders may have difficulty accessing seed that will germinate from the

depository which collects patented seeds as part of the patent application process. In addition, 

without a meaningful research exemption, plant breeders must wait until germplasm or traits are

off-patent to begin experimentation and breeding, whether these traits are genetically engineered or 

naturally occurring. At that point, the off-patent traits that are accessible for breeding are in offpatent varieties that are quite old compared to the current elite varieties. It is not possible to take an 

off-patent trait and move it directly into a new variety; it has to be incorporated into a breeding 

program, meaning that it takes years to deploy off-patent traits in varieties that are competitive on 

the market. In countries that do not allow patents on plant varieties, and which permit research and 

breeding with patented traits,151 plant breeders have access to patented traits for pre-commercial 

148. Breakthrough Institute, Comment on “Competition,” 4.

149. The American Antitrust Institute, Comment on “Competition,” 3. 

150. “One of the main reasons for this small acreage of PIPs on the list for potential phase-down is that the current 

registrants have been combining the post-patent PIPs with currently patented PIPs and selling these “stacks” in their 

branded seed as well as licensing them to other companies, regardless of a licensee’s or the ultimate corn farmer’s need for 

the additional traits. This practice has multiple negative impacts by increasing the costs to licensees and their seed 

customers while also stifling competition from potentially new registrants.” Farmers Business Network, Comment on 

“Competition,” 9. 

151. France: Article L. 613-5-3 of the Intellectual Property Code adopted in 2004; Germany: Section 11.2.b of the Patent Act 

adopted in 2005; the Netherlands: Article 53.2.b of the Dutch Patent Act; Switzerland: Article 9 (e) of the Federal Act on 

Patents for Inventions, adopted in 2008.
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research and breeding and can develop elite varieties ready for the market when the patent 

expires.152

Biotechnology regulation may delay commercialization of new 

products and generics

The coordinated regulatory framework that determines which genetically engineered products are 

able to enter the market plays an important role in the development of a generic industry. EPA, FDA 

and USDA-APHIS all have regulatory authority over certain products of biotechnology. Some 

commenters noted that the extensive investments required by seed companies to bring new 

genetically engineered products through the regulatory process are untenable for small and medium 

sized entities. The American Seed Trade Association wrote that regulatory expenses, and the amount 

of time spent in the regulatory approval process, has increased dramatically in recent years. “While 

other costs of research and development may vary between companies and plant species,” they 

wrote, “the cost and time of regulation is applied equally regardless of the size of the company, the 

plant species, commercial market potential, or even the safety risk assessment of the gene 

target(s).”153 

At the same time, generic producers of genetically engineered traits have faced significant obstacles 

to accessing the seeds and information required to produce generics that will meet regulatory 

standards. Concerns have been raised with companies allowing registrations to expire for the offprotection technology and setting high prices to share data necessary for regulatory compliance,

which may allow patent owners to prevent competitors from using technologies that should 

ostensibly become a part of the public domain.154 A voluntary framework for addressing this issue, 

called the AgAccord, has been developed by the private sector.

155 The White House Office of Science 

and Technology, along with the EPA, FDA, and USDA-APHIS are currently conducting a review of the 

coordinated framework on the regulation of biotechnology.156 While this report is focused on 

intellectual property and consolidation, a dedicated review of current regulatory requirements is 

likely imperative to a vibrant and competitive agricultural biotechnology market.

152. These countries only require plant breeders to have a license when they decide to commercialize a variety, and only if 

the variety contains traits that are still subject to patent claims. Viola Prifti, The Breeder’s Exception to Patent Rights: 

Analysis of Compliance with Article 30 of the TRIPS Agreement, International Law and Economics (Cham: Springer 

International Publishing, 2015), https://doi.org/10.1007/978-3-319-15771-9.

153. American Seed Trade Association, Comment on “Competition,” 6.

154. “Finally, companies can in effect extend the life of a patent by making it difficult for other developers to commercialize 

products that use the off-protection technology by neglecting stewardship of the off-protection technology, maintenance 

of regulatory authorizations, and sharing of data and studies necessary for regulatory compliance.” Breakthrough Institute, 

Comment on “Competition,” 4. (In consultation with the USPTO, we underscore that the life of a patent cannot actually be 

extended, but also acknowledge that practices may give that appearance.)

155. http://www.agaccord.org 

156. Office of Science and Technology Policy, “Request for Information: Identifying Ambiguities, Gaps, and Uncertainties in 

the Coordinated Framework for the Regulation of Biotechnology,” 87 Fed. Reg. 77900, (2022). 

https://www.federalregister.gov/documents/2022/12/20/2022-27599/request-for-information-identifying-ambiguitiesgaps-inefficiencies-and-uncertainties-in-the
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In summary, the most recent round of seed industry mergers has resulted in an industry structure 

that has essentially combined multiple markets into platforms which include genetically engineered 

traits, improved varieties, other inputs and digital tools all from the same company.157 One of the 

challenges of consolidation of multiple markets and IP ownership is that smaller companies seeking 

to move into these markets may not be able to gain access to a market in one part of the platform 

because they lack access to other parts of the platform, such as protected germplasm and patented 

traits. Additionally, existing independent seed dealers have little choice but to maintain license 

agreements from the dominant players because adding third party products might mean they could

lose access to multiple product lines for which there are very few alternative sources.

158 New 

entrants, such as small biotechnology firms, see the value of patents to protect their innovations and 

spoke in favor of maintaining strong patent protections for truly innovative developments in 

interviews, listening sessions, and the public comments.159 However, they also recognized the need 

for access to elite varieties to deploy new technologies, which means being able to license their 

technology to breeding companies or being able to license germplasm from breeding programs.160 A 

strategy to increase competition in seeds and other inputs will necessarily examine the effects of 

horizontal integration and common licensing practices in the industry, while increasing access to 

elite germplasm for small and independent companies.

Recommendations To Improve Competition and 

Innovation

The USDA recognizes the leading role of antitrust and fair business practice enforcement by Federal 

partners including the DOJ and the FTC. Through their interagency working group, USDA and USPTO 

will collaborate to promote competition in the seed industry. Specific actions could include the 

following: 

157. Lianos and Ivanov, “The Global Seed Market, Competition Law and Intellectual Property Rights,” 75. 

158. “Additionally, the owners of the traits have been using the "loyalty" programs with independent seed companies 

which make considering alternative traits punitive.” Independent Professional Seed Association, Comment on 

“Competition,” 6. 

159. “In the context of plant seeds and other living organisms (e.g., microbes) where the product is easily reproduced, 

patent protection and the adherence to the Supreme Court’s holdings in Bowman v. Monsanto are important to incentivize 

the significant investment needed to bring these products to market.” Pivot Bio, Comment on “Competition,” 3. 

160. An issue occurs where an owner of a platform technology (e.g., a plant seed or operating system) can use their 

position to limit access to a technology which operates on the platform (e.g., in the case of a plant seed, a biological 

treatment, or in the case of an operating system, an application). While patents are, in their very nature, anti-competitive, 

this can become impermissibly anti-competitive when a patent holder uses their patent rights to gain an advantage over a 

technology not covered by their patents. This can include limiting access to a platform (e.g., a plant seed) to developers of

technology that operate on that seed (e.g., a biologicals company), especially where the owner of the platform technology 

uses their IP rights to slow the development of technology to allow them to develop their own competing technology or to 

show preference for particular technologies over others (e.g., their own technologies or technologies from their preferred 

vendors).” Pivot Bio, Comment on “Competition,” 3. 
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• Expand farmerfairness.gov to include seeds and other inputs, and conduct outreach and 

education to farmers, plant breeders, seed businesses, and the public, including around 

potentially anticompetitive behavior and how to file confidential tips and complaints.

• Educate farmers about the rights conferred by the sale or voluntary exchange of seed that are 

subject to bag tags, licenses, and MTAs so that farmers and others better understand when use 

of those products is and is not subject to IP protections. 

• Assess the impact of reduced competition and IP on pricing, choice, and availability of adapted 

varieties of commodity and specialty crops across growing regions.

• Coordinate and consult on actions related to practices in the seed industry that may harm 

competition or adversely affect consumers. Provide information related to food security, genetic 

vulnerability, and regional production issues for consideration by DOJ and FTC in the context of 

competition matters that may come before them, including as they may relate to the 

appropriateness of providing non-exclusive licenses for IP to address anticompetitive practices 

and market structures. 

• Explore opportunities for promoting the development of generic competition when appropriate.

161

161. Tips and referrals regarding criminal antitrust matters are protected under the Criminal Antitrust Anti-Retaliation Act. 

See “Fraud and Financial Issues” at www.whistleblowers.gov.
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3. Seed System Resilience

In 2018, the National Defense Authorization Act recognized the global food system as a national 

security concern. As the world becomes increasingly dependent on fewer food-growing regions, 

countries are more susceptible to acute environmental and political shocks.162 The occurrence of 

global disruptions, as demonstrated by the COVID pandemic and the war in Ukraine, have 

compounded these vulnerabilities, as countries with constrained food supplies have been unable to 

simply purchase food elsewhere. The USDA’s Food System Transformation framework, announced 

this year, includes working toward a more resilient food supply chain by increasing capacity of 

distributed and local food producers. The framework builds upon USDA’s Agri-food Supply Chain 

Assessment,163 carried out under E.O. 14017, which highlights the need for “resilient, diverse, and 

secure chains” across all industries in order “to ensure our economic prosperity and national 

security.”164 Because all production starts with seeds, domestic seed research, development, and 

production should be considered critical national security infrastructure. 

Resilience is a concept used in many fields and is generally understood as the ability to adapt to or 

recover from change. Seed systems include both biological and human systems, and resilience in 

both types of systems relies on their buffering capacity, physical and functional redundancy of 

components, decentralization of functions, and the flexibility of components to take on different 

roles as conditions change.165 Buffering capacity is probably the most well-known component of 

resiliency, and in biological systems, including agriculture, this can be increased by the 

incorporation of diversity at multiple levels, from genetic diversity within crops, to the diversity of 

crops grown on the landscape and the agricultural systems present. In terms of the human side of 

seed systems, this buffering capacity can be achieved by diversifying enterprises and spreading risk 

across multiple breeding programs and seed production regions. Physical and functional 

redundancy is more difficult to advocate for, as it often goes against economic concepts of efficiency 

and specialization, but it is equally important. Similarly, decentralization of functional components 

often is seen as less efficient than centralized, standardized systems. However, the vulnerability of 

hyper-specialized supply chains to disturbance has renewed interest in more resilient essential 

supply systems. The final component of resilience, flexibility, is perhaps the hardest element of 

resiliency to plan for, and relies mostly on people having enough knowledge to fill multiple roles in 

the seed system, enough information to adapt, and enough choices of seed and germplasm to make 

adaptation possible. 

162. Anthony Janetos et al., “The Risks of Multiple Breadbasket Failures in the 21st Century: A Science Research Agenda” 

(Boston, MA: The Frederick S. Pardee Center for the Study of the Longer-Range Future, 2017). 

163. USDA, “USDA Agri-Food Supply Chain Assessment: Program and Policy Options for Strengthening Resilience,”

(2022). https://www.ams.usda.gov/sites/default/files/media/USDAAgriFoodSupplyChainReport.pdf.

164. Executive Order 14017 of February 21, 2021, “America’s Supply Chains,” 86 Fed. Reg. 11849. 

https://www.federalregister.gov/documents/2021/03/01/2021-04280/americas-supply-chains. 

165. Julie Dawson, “Building Resilient Seed Systems: Implications for Germplasm Conservation, Plant Breeding, and the 

Organic Seed Community,” Proceedings of the 8th Organic Seed Growers Conference, (Corvallis, OR: Feb. 4-6, 2016), 136-

138. https://seedalliance.org/publications/proceedings-8th-organic-seed-growers-conference.
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In many ways, ensuring fair competition is the most direct way to enhance seed system resilience. 

Providing equitable access to markets will allow companies of all sizes to thrive by focusing on 

crops, agricultural systems, and regions where they see opportunities. New companies will be able 

to emerge where there are gaps in product offerings and small companies can serve regions that are 

otherwise overlooked. Most importantly, a seed sector with many actors will decentralize and 

diversify decision-making, so that people responding to local and regional contexts will make the 

decisions that affect the future of our food system. It also will mean that many people will have the 

knowledge needed to step in and help the system recover if faced with a crisis. To accomplish this 

goal, in addition to addressing issues related to IP rights and anti-competitive behavior, there is also 

a need to reinvest in seed system infrastructure and engage future seed system leaders by 

supporting education and training.

It has long been recognized that there is an important role for the public sector to play in medical 

research, for conditions that do not have a large drug market or for issues related to public health 

and the prevention of illness. A similar approach is needed to achieve food system security and 

domestic national security in agricultural production. Public investment can support both critical 

seed system infrastructure for national security and fair competition in the seed industry, providing 

choices to farmers in all regions. Historically, the USDA-Agricultural Research Service (ARS) and State 

Agricultural Experiment Stations (SAES) supported by both state and federal funds have worked 

cooperatively to develop new varieties of both regionally and nationally important crops. States also 

typically have foundation seed programs to ensure that farmers have access to high quality, certified 

seed of varieties developed in the public sector. These programs are especially important for crops 

that have high social value but lower private returns, like some small grains and tubers, organic 

seeds, and regionally adapted varieties.166 

Funding for these programs has declined at both the state and federal level over the last several 

decades, meaning that this infrastructure may be at immediate risk of being privatized or 

dismantled. One plant breeder who spent most of their career in the private sector wrote that due to 

increasing consolidation, “tied into the concomitant decrease in funding and activities at the USDA 

and State Universities on fruit and vegetable research and breeding programs, we have significantly 

less chance of innovation now than in the past. For example, when I started working in 1982, there 

were 6 or 7 public programs on peppers in the U.S. Now there are maybe two.”167 A recent study by 

USDA-ERS researchers shows that while major trade competitors, including China, the European 

Union, India, and Brazil, are increasing public spending on agricultural R&D, the United States is 

falling behind. The report states that “present trends may affect the U.S. role as a global leader in 

agricultural sciences” and could lead to reduced trade competitiveness if national productivity 

166. “Underinvestment is likely to be greatest when there is a large gap between private and social returns. Underinvested 

areas may include, for example: Identification and characterization of unique genetic traits from plant germplasm resources 

(such as from the NPGS) for breeding new cultivars; Applied research for technologies that are especially difficult to patent

or appropriate, such as breeding new varieties of “orphan” crops that include some small grains, root and tuber crops, tree 

crops, and others; Breeding cultivars to be grown outside current major production areas or for small markets such as 

organic.” USDA, “Roadmap for Plant Breeding,” (2015). 

www.nifa.usda.gov/sites/default/files/resources/usda-roadmap-plant-breeding.pdf

167. Ken Owens, Comment on “Competition,” 1. 
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growth is slowed.168 This echoes findings in several studies that declining public funding is 

endangering our capacity to conduct plant breeding and agricultural research to respond to critical 

needs throughout the country.169

The decrease in public support for agricultural R&D may be due in part to an expectation that the

private sector will fill gaps in research needs. In 1950, public agencies (including federal programs, 

Land Grant Universities, and State Agricultural Experiment Stations) outspent the private sector in 

agricultural research by 34%. By 2011, the private sector was outspending the public sector by 

73%.170 The Bayh-Dole Act, signed in 1980, allows public universities to retain title to market 

innovations developed using federal research funds, and was intended to help fund public research. 

However, in 2015, the National Genetic Resources Advisory Council (NGRAC) acknowledged that the 

Bayh-Dole Act may have resulted in the “development of varieties suitable for the largest economic 

markets and thus have had an unintended negative impact on the ability of public breeding 

programs to deliver commercially available organic and non-GE varieties for GE-sensitive 

markets.”171 

Other studies have analyzed the impact of private-sector funding on public breeding programs.172 In 

2017, researchers conducted a survey of nearly 200 public plant breeders in the United States, in 

which over 70% indicated that their cultivars were “always” or “most of the time” protected by IP. 173

In the same survey, only 4% reported that IP mechanisms currently employed by the public sector 

improve their freedom to operate, while over half responded that the public sector’s IP system 

“somewhat” or “strongly” restricts their freedom. In the same survey, 70% of respondents said that 

168. Nelson, Kelly, and Keith Fuglie. "Investment in U.S. Public Agricultural Research and Development Has Fallen by a Third 

Over Past Two Decades, Lags Major Trade Competitors." Amber Waves: The Economics of Food, Farming, Natural 

Resources, and Rural America (2022). https://www.ers.usda.gov/amber-waves/2022/june/investment-in-u-s-publicagricultural-research-and-development-has-fallen-by-a-third-over-past-two-decades-lags-major-trade-competitors. 

169. President’s Council of Advisors on Science and Technology, “Report to the President on Agricultural Preparedness and 

the Agriculture Research Enterprise” (Washington DC: Executive Office of the President, December 2012).; 

See also Adrienne C. Shelton and William F. Tracy, “Cultivar Development in the U.S. Public Sector,” Crop Science 57, no. 4 

(2017): 1823–35, https://doi.org/10.2135/cropsci2016.11.0961.; 

See also Michael T. Coe et al., “Plant Breeding Capacity in U.S. Public Institutions,” Crop Science 60, no. 5 (September 1, 

2020): 2373–85, https://doi.org/10.1002/csc2.20227.

170. Philip G Pardey and Jason M Beddow, “Revitalizing Agricultural Research and Development to Sustain U.S. 

Competitiveness” (Farm Journal Foundation, 2017), 3. www.instepp.umn.edu.

171. NGRAC, “Report and Recommendations of The National Genetic Resources Advisory Council,” (2015), 11. 

nareeeab.ree.usda.gov/sites/default/files/2017-07/2%202015%20NGRAC%20Report%20Final.pdf. 

172. The idea that Bayh-Dole may be restricting access to elite germplasm was noted as early as 2007 by the Government 

Office of Accountability: “Regarding barriers to accessing plant germplasm, plant breeding researchers with whom we 

spoke said that intellectual property laws can limit access to elite germplasm. For example, the University and Small 

Business Patent Procedures Act, also known as the Bayh-Dole Act, allowed nonprofit organizations, such as universities, to 

retain title to and market the inventions they created using federal research funds. As a result, universities now restrict 

their sharing of germplasm, according to these plant breeding researchers.” U.S. Government Accountability Office, 

“Information on Classical Plant and Animal Breeding Activities,” GAO-07-1171R. (Washington, DC, 2007) 

www.gao.gov/assets/gao-07-1171r.pdf. 

173. Shelton and Tracy, “Cultivar Development in the U.S. Public Sector,” 1829.
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funding from private industry impacts the focus of their breeding work in varying degrees.174 Some 

scholars argue that decreasing funding from public sources raises the concern that university 

scientists may need to pursue crop development programs that generate revenue and may have 

difficulty supporting under-represented crops.175 Still, the fact is that for most breeding programs, 

even highly successful ones, royalties represent a small share of their overall operating budget.176

Even in the private sector, breeding programs are funded by a combination of royalties and seed 

sales, not royalties alone.

Importantly, studies conducted by independent scientists provide unbiased information on new 

technologies for farmers. Public researchers have traditionally been responsible for conducting 

independent trials that compared seed variety efficacy, safety, and performance. A decline in 

funding, coupled with stricter intellectual property rights and cross-licensing agreements, has meant 

that farmers are increasingly dependent on product information generated by the seed companies 

themselves, from sales representatives, seed dealers or branded retailers who conduct trials, 

company trial reports, and company websites. Testing conducted by larger well-resourced 

companies in multiple locations may be highly accurate due to the large quantity of data generated. 

Still, public sector trials are an important point of comparison across multiple companies for 

growers, and small to mid-sized companies or new entrants are able to demonstrate their variety 

performance in comparison to varieties from dominant firms. Without this data and visibility, market 

entry can be very difficult for smaller companies. 

Risks of Declining Public Investment in Our Seed 

System

There is growing interest in increasing domestic food production capacity; however, foreign 

ownership of seed and chemical input manufacturers, as well as the globalized nature of seed 

production, complicates this proposition. While foreign investment in seed systems contributes to 

global seed system resilience, it is important that this be balanced with U.S. domestic investment 

and domestic capacity. Today, three of the top four companies currently dominating the seed 

market in the Unites States are foreign-owned.177 In 2017, researchers estimated that German-owned 

174. Shelton and Tracy, 1831. 

175. “[W]hen compared to agribusiness scientists, university crop scientists have tended to focus on minor crops and minor 

crop traits. The public sector has funded this research because a healthful, environmentally friendly and diverse food supply

is important for societal well-being... The concern, then, is that reducing public investment in research funding, encouraging 

universities to conduct research while pursuing intellectual property, and encouraging universities to collaborate with the 

private sector will blur distinctions between research cultures and undermine the university’s social obligations.” Leland 

Glenna, Sally Shortall, and Barbara Brandl, “Neoliberalism, the University, Public Goods and Agricultural Innovation: 

University, Public Goods, Agricultural Innovation,” Sociologia Ruralis 55, no. 4 (October 2015): 446, 

https://doi.org/10.1111/soru.12074.

176. Shelton and Tracy, “Cultivar Development in the U.S. Public Sector,” 1831.

177. Howard, Concentration and Power in the Food System: Who Controls What We Eat?, 110.
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Bayer Crop Science and Chinese state-owned Syngenta group accounted for over half of all 

ownership of U.S. patent rights for maize and soybean varieties.178

While the specialty crop industry is not as consolidated as that of corn, soy, and cotton, foreign 

entities still control much of the plant breeding and seed production. Bayer, BASF and Syngenta are 

leading companies in vegetables as well as in agronomic crops, along with Vilmorin/Limagrain 

(France). Other leading players include Rijk Zwaan (Netherlands), TAKII (Japan) and Sakata (Japan), 

Bejo (Netherlands), Enza Zaden (Netherlands) and Ball (U.S.). Most of these companies do have 

breeding and trialing programs in the U.S., with U.S.-based plant breeders and research stations. 

Seeds, however, are often grown outside of the U.S. due to labor availability and the possibility of 

counter seasonal production. Specialty crop seed tends to be higher value per unit volume, which 

makes transportation costs less significant. In addition, specialty crop seed may require very specific 

environmental conditions for successful production, which constrains where large-scale seed 

production occurs. In specialty crops, the seed producing regions may be different from the crop 

producing regions because the conditions for the best quality seed may be different from the 

conditions where the crop can be grown. This is different than commodity crops where the marketed 

product is often the seed (as grain). Most specialty seed companies have a presence in both seed 

producing and crop producing regions.

As consolidation has resulted in fewer and larger companies, those companies have concentrated 

research and development in higher volume and higher value seed markets.179 Smaller scale seed 

companies and public sector programs often do not have the same volume or dollar value thresholds 

for a variety to be considered profitable and can focus on more regional production or smaller

acreage crops or agricultural systems. Reductions in the number of breeding companies and 

breeding programs, and the potential decreases in the number of crops being developed for each 

region of the country, increases our vulnerability to major shocks in two ways. 

First, it concentrates production of crops in the regions where there is the most support for those 

crops. If production becomes highly concentrated in certain regions, such as specialty crop 

production in California,

180 it puts the country at risk of shortages should a disruption occur to 

production, processing, or distribution from that region. For example, lettuce production is highly 

concentrated geographically, which creates a positive feedback loop for lettuce breeding efforts to

focus on those areas of California. A severe drought in that area would affect the national supply in 

the short term. In the longer term, this concentration of production and breeding efforts reduces our 

ability to adapt to climate change or other more substantial disruptions, because it would take a 

decade or more to restart breeding programs in regions of the country which are not currently major 

178. Clancy and Moschini, “Intellectual Property Rights and the Ascent of Proprietary Innovation,” 68. 

Notably, both Chinese and German intellectual property systems permit a broader scope of breeding allowance on IPRprotected crops. Germany has incorporated a specific breeding exemption into their IP legislation, while China does not 

grant patents on plant varieties. See: Zhiqian Wan and Mark Perry, “Breeding Exemption in Plants Under Intellectual 

Property Regimes,” in Free Trade Agreements (Singapore: Springer Singapore, 2019), 99–117. https://doi.org/10.1007/978-

981-13-3038-4_6. 

179. USDA, “Agri-food Supply Chain Assessment,” 13-14. 

180. USDA, “Agri-food Supply Chain Assessment,” 13-14.
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production areas. In particular, the Great Lakes region is expected to become an even larger region 

for specialty crop production in the future, but mergers have resulted in the closure of several 

breeding stations in the region, with personnel relocated to California. 

Second, commodity farmers are at high risk of disruptions because of decreased on-farm genetic 

diversity in major crop-growing regions for corn, soy, and cotton. Recent studies on genetic diversity 

have shown that the global food system is dependent on increasingly fewer crops.181 The lack of 

diversity may be more pronounced in the U.S. than in other agricultural centers, where even diversity 

within crops has been increasingly narrowed by the proprietary nature of seeds.182 A study of countylevel crop data across the U.S. shows that overall crop diversity decreased from 1978 - 2012, with the 

biggest decrease in diversity reported in the Heartland Resource Region, comprising most of the 

Corn Belt where both crop types and the companies that market them are the most consolidated.183

Intellectual property rights that restrict research prevent analysis of the genetic composition of corn 

hybrids on the market,184 but some analyses on publicly available and non-research restricted seeds 

suggest that a majority of corn on the market is derived from just a few genetic lines.185 We heard 

from several people knowledgeable about the industry that essentially all the genetic diversity in our 

current maize crop is available in off-patent lines, meaning that there has been little to no 

introduction of new genetic diversity to the germplasm pools of the largest companies for at least 20 

years. The current genetics have just been continuously recombined and introduced traits that offer 

different types of pest and herbicide resistance, with an increasingly narrower genetic base.186

Genetic uniformity lends a high degree of performance and predictability to crop systems, but also

means that the entire maize industry might be at an increased risk of novel pathogens or climatic 

stressors.187 For years, the USDA’s Maize Crop Germplasm Committee has listed an assessment of the 

genetic health of the standing U.S. maize crop as a matter of national security, but as of yet, such a 

181. Colin K. Khoury et al., “Increasing Homogeneity in Global Food Supplies and the Implications for Food Security,” 

Proceedings of the National Academy of Sciences of the United States of America 111, no. 11 (March 18, 2014): 4001–6, 

https://doi.org/10.1073/pnas.1313490111. 

182. “Nevertheless, most of the developed countries derive all of their diversity from this narrow germplasm and the effect 

of economic and IP policy on innovation in agriculture is continuing to narrow the germplasm.” Jack A. Heinemann et al., 

“Sustainability and Innovation in Staple Crop Production in the U.S. Midwest,” International Journal of Agricultural 

Sustainability 12, no. 1 (January 2014): 71–88, https://doi.org/10.1080/14735903.2013.806408. 

183. Jonathan Aguilar et al., “Crop Species Diversity Changes in the United States: 1978–2012,” ed. John P. Hart, PLOS ONE

10, no. 8 (August 26, 2015): e0136580, https://doi.org/10.1371/journal.pone.0136580. 

184. “The proprietary nature of commercial corn hybrids complicates determination of their composition and diversity.” 

Mark A. Mikel, “Genetic Diversity and Improvement of Contemporary Proprietary North American Dent Corn,” Crop Science

48, no. 5 (September 2008): 1687, https://doi.org/10.2135/cropsci2008.01.0039.

185. “Our results revealed that, on average, 81.6% of an ex-PVP’s genome is shared with at least 1 of these 12 founder lines 

and more than half when limited to B73, Mo17 and 207.” Stephanie M. Coffman et al., “Haplotype Structure in Commercial 

Maize Breeding Programs in Relation to Key Founder Lines,” Theoretical and Applied Genetics 133, no. 2 (February 2020): 

547, https://doi.org/10.1007/s00122-019-03486-y.

186. Researchers documented this trend as early as 2006: “Review of the pedigree derivations in this study suggests that 

plant breeders have been most successful in developing new products when they recombine the most elite material 

available. The propensity of breeders to work elite related material in recycling of inbred lines may over the long-term 

decrease genetic diversity.” Mark A. Mikel and John W. Dudley, “Evolution of North American Dent Corn from Public to 

Proprietary Germplasm,” Crop Science 46, no. 3 (May 2006): 1204, https://doi.org/10.2135/cropsci2005.10-0371.

187. McCluskey and Tracy, “Engaging Farmer Stakeholders: Maize Producers’ Perceptions of and Strategies for Managing 

On-Farm Genetic Diversity in the Upper Midwest,” 2.
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study has not been performed.188 The NPGS conserves a large collection of genetic resources for 

maize, and an ongoing public-private partnership, the Germplasm Enhancement of Maize (GEM) 

project, seeks to increase the genetic diversity available in commercially viable lines.

189 However, the 

landscape-level genetic diversity of maize and other crops is still currently unknown.

Infrastructure and Capacity Building to Strengthen 

Seed System Resilience 

Significant gaps in crop development investment include regions outside the primary production 

area, crops with environmental benefits such as cover crops or perennials, the development of 

generic versions of patented traits in genetic backgrounds adapted to particular regions, and crop 

development for reduced input requirements or organic production. The public sector may also take 

on research that is farther upstream from commercialization or that has a long time horizon before a 

commercial product will be available. This could include identifying resistances for emerging 

diseases in un-adapted varieties or wild species and incorporating them into well-adapted 

germplasm, developing perennial crops, and adapting crops to the effects of climate change. 

Renewed public investment in pre-breeding activities would additionally provide high-quality 

germplasm to small and mid-sized regional companies which may not have the capacity to run a full 

breeding program on their own, but which can work from public releases to develop more regionally 

adapted cultivars at a competitive price for farmers.

There is wide support for increasing funding for public breeding programs and agricultural research 

stations. In the request for information, responses that differed substantially on the topic of 

intellectual property rights agreed on the call for increased public investment in crop development 

programs. For example, the American Seed Trade Association recommended “strong public sector 

research investments in the plant sciences.”190 Friends of the Earth supported “more funding and 

research from land grant universities and HBCUs [Historically Black Colleges and Universities] for 

seeds and climate mitigation strategies that stay in the public domain.”191 A comment from the 

Breakthrough Institute named “insufficient public research funding” as one of the most important 

factors in “discouraging innovation or preventing public access to new and improved crop varieties 

at reasonable cost.”192 In 2016, a national summit on intellectual property rights and public plant 

breeding listed “capacity funding for public cultivar development” a top priority.193

188. USDA-ARS Maize Crop Germplasm Committee, “Maize Crop Vulnerability Statement

Recommendations,” 1. https://www.ars-grin.gov/npgs/cgc_reports/maizevuln2016.pdf. 

189. USDA-ARS, “Germplasm Enhancement of Maize: Utilizing diverse maize genetic resources from around the globe,” 

https://www.ars.usda.gov/midwest-area/ames/plant-introduction-research/home/germplasm-enhancement-of-maize/

190. American Seed Trade Association, Comment on “Competition,” 10. 

191. Friends of the Earth, Comment on “Competition,” 1. 

192. Breakthrough Institute, Comment on “Competition,” 2. 

193. J. C. Dawson, V. M. Moore, and W. F. Tracy, “Establishing Best Practices for Germplasm Exchange, Intellectual Property 

Rights, and Revenue Return to Sustain Public Cultivar Development,” Crop Science 58, no. 2 (March 1, 2018): 470, 

https://doi.org/10.2135/cropsci2017.05.0320.
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The conservation and use of genetic diversity of crops is also a role which the public sector has led, 

and still leads, although currently without sufficient funding. For thousands of years, America has 

been home to incredible agricultural diversity due to the work of Indigenous seed keepers, whose 

cultivation domesticated some of the world’s most important crops. European settlers and enslaved 

African people brought seeds from other continents. Agricultural productivity was dependent on the 

knowledge of Indigenous and African farmers. Many of the seeds in our public germplasm collections 

come from Indigenous sources. In the U.S., the 1890 and 1994 Land Grant institutions have not 

historically had the same level of investment as 1862 Land Grant Universities, where most public 

plant breeding programs are located. Increased federal funding for HBCUs, Tribal Colleges, and 

Tribal Governments to build capacity and infrastructure for seed stewardship and seed sovereignty 

initiatives is critical to building an equitable, diverse, and resilient food system. The public sector 

also has a key role to play in education and empowerment of talented individuals who will be the 

next generation of plant breeders, scientists, entrepreneurs, and seed stewards. While several 1862 

Land Grant Universities have graduate programs and undergraduate programs in plant breeding and 

related agricultural sciences, this should be expanded to engage 1890 and 1994 Land Grants, 

Technical and Community Colleges and high schools who may reach a much broader and more 

diverse group of students interested in agriculture and food security. 

Recommendations to Improve Seed System Resilience

The USDA plays a vital role in seed system resilience by conducting and funding public research and 

breeding programs. Declining resources in recent decades have constrained the ability for the public 

system to support choices for farmers and ranchers—risks that the pandemic revealed all too clearly. 

USDA has already begun pivoting to meet the needs of a more diverse and resilient food system, 

which incorporates equity and respects Indigenous food systems. Yet more remains to be done.

Below we highlight several project areas, proposed and ongoing, and funding gaps where additional 

investment could create more diverse and robust supply chains.

• Explore and highlight opportunities where additional funding, if provided, may encourage 

public sector plant breeders to work in crops or regions that are currently underserved by the 

private sector and where innovation is needed to increase the choice of cultivars available to 

farmers and to improve seed system resilience. In particular, continue to build capacity at 1890 

and 1994 Land Grant Universities for plant breeding, seed stewardship and research, in addition 

to rebuilding 1862 Land Grant University infrastructure and capacity. 

• Promote broader adoption of IP strategies that enable continued research and breeding with 

commercialized cultivars resulting from federally funded research programs. As a model of IP 

policies, USDA-AMS cultivar release practices usually allow for continued research, breeding, 

and seed saving.

• Support robust genetic diversity and innovation potential through the exchange of experimental 

germplasm between plant breeders, by promoting adoption among federally funded research 

programs of material transfer agreement (MTA) best practices that provide for research and 

breeding exemptions. 
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• Work with the USPTO and National Institute of Standards and Technology (NIST) to examine 

how the Bayh-Dole Act can appropriately support plant breeding programs and further cultivar 

development.

• Encourage and strengthen partnerships between public entities, small and mid-sized 

businesses, and non-profit organizations to support seed systems; for example, through the 

USDA-NIFA Small Business Innovation Research (SBIR) and Small Business Technology Transfer 

(STTR) programs. These offer competitively awarded grants to qualified small businesses to 

support high quality research related to important scientific problems and opportunities in 

agriculture that could lead to significant public benefits. 

• Encourage and strengthen ongoing outreach and support to historically underserved groups, 

including Indigenous peoples who originally stewarded and continue to care for important 

varieties, among which are those held in public collections.

• Explore opportunities to invest in education for agriculture, plant breeding and seed systems at 

all levels, including high schools, community colleges, technical colleges, 1994, 1890 and 1862 

Land Grant Universities to cultivate the next generation of agricultural innovators.
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Conclusion

Farmers know that the key to resilience in agriculture is diversity. Farmers plant multiple varieties so 

that when one exhibits a weakness—to insects, or pests, or environmental conditions—other 

varieties can contribute to continued productivity.

194 Consolidation in agriculture has resulted in less 

diversity at all levels of the value chain: today, fewer companies produce a larger share of inputs 

than ever before, including seeds and related technologies.195While this consolidation might lead to 

greater theoretical efficiency in the food system, it can also lead to higher levels of vulnerability to 

disturbances.196Seed systems combine aspects of both biological and human systems, and so can 

draw from research on resilience in both types of systems. Resilient systems typically have a degree 

of redundancy, diversity, decentralization and flexibility, meaning components are not so specialized 

that if one component fails the entire system goes down. In addition, the complexity and scope of 

the issues facing agriculture and food systems require a critical mass of people and infrastructure to 

adequately respond. 

The intersection of intellectual property and antitrust is complex, made even more so by the 

overlapping mechanisms that control how seed varieties and traits are developed, sold, and 

distributed. Helping all actors—including plant breeders, farmers, and seed companies—understand 

and engage with these systems provides a clear benefit to all who depend on the crops they grow.

Many of the recommendations in this report will draw on the new Farmer Seed Liaison, an initiative

that can help bridge the gaps and enhance transparency in a complicated environment. In doing so, 

it will help to foster more choices and increased innovation across crops and regions. In a time of 

increasing disruption, the American food system must find ways to increase its resilience.197

Promoting transparency, fair competition, and innovation among many actors in the seed system is 

the first step to accomplishing this goal. 

194. Brenda B. Lin, “Resilience in Agriculture through Crop Diversification: Adaptive Management for Environmental 

Change,” BioScience 61, no. 3 (March 2011): 183–93, https://doi.org/10.1525/bio.2011.61.3.4.

195. James M MacDonald, Robert A Hoppe, and Doris Newton, “Three Decades of Consolidation in U.S. Agriculture” (USDA - 

ERS, 2018), https://www.ers.usda.gov/webdocs/publications/88057/eib-189.pdf?v=610.5. 

196. Michael S. Crossley et al., “Recent Collapse of Crop Belts and Declining Diversity of U.S. Agriculture since 1840,” Global 

Change Biology 27, no. 1 (January 2021): 151–64, https://doi.org/10.1111/gcb.15396.

197. Mary K. Hendrickson, “Resilience in a Concentrated and Consolidated Food System,” Journal of Environmental Studies 

and Sciences 5, no. 3 (September 5, 2015): 429, https://doi.org/10.1007/s13412-015-0292-2.
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Appendix A. History of IP for Plants in 

the U.S. 

Agriculture in the present-day United States has been fueled by the exchange of seeds and local 

selection. For millennia, Indigenous people have cultivated crops, growing with and alongside wild 

plants to create varieties that filled different environmental, culinary, and cultural niches.198 Early 

exchange of seeds across the continent and with Central and South America resulted in the 

domestication and widespread cultivation of some of America’s most important crops – crops like 

corn, beans, potatoes, squash, peppers and tomatoes. However, the diversity cultivated has been 

subject to extensive pressures over the last several centuries, including the intentional destruction of 

Indigenous seeds as a form of displacement and war.199 

In the nineteenth century, colonization expanded across North America and settlers introduced

other crops to the agricultural system present on the continent. In 1839, the United States Patent 

Office obtained congressional funding to collect and distribute seeds and plants to settler farmers 

across the country, to determine the varieties best suited to their new environment.200 The Patent 

Office, through its Division of Agriculture, sent millions of free seeds to farmers each year, including 

both foreign seeds and high-quality domestic varieties. The free seed program was so robust that in 

1862, Congress elevated the Division to department status, and directed the newly founded 

Department of Agriculture to “procure, propagate, and distribute among the people new and 

valuable seeds and plants.”201 In the same year, the Morrill Act created “Land-Grant Universities” to 

teach agricultural and mechanical arts to farming families across the country.202 Soon after, the 

Hatch Act created state Agricultural Experiment Stations (SAES), which partnered with the 

Universities to carry out research and breeding projects.203 The improved cultivars, which were 

optimally adapted to each station’s specific region, were then delivered to local farmers that could 

use them.

Many of the seeds that were collected during the 19th and 20th centuries were also deposited into 

what is today known as the National Plant Germplasm System (NPGS), a public repository of over 

600,000 plant accessions whose stated purpose is to “safeguard the genetic diversity of 

agriculturally important plants” and to “support agricultural production by acquiring, conserving, 

evaluating, documenting, and distributing crop germplasm.”204 NPGS genebanks maintain this seed 

collection and distribute, at no cost, small quantities to researchers and plant breeders looking for 

198. See Rowen White, “Planting Native Seeds in a Modern World,” Devon A. Mihesuah and Elizabeth Hoover, 

eds. Indigenous Food Sovereignty in the United States: Restoring Cultural Knowledge, Protecting Environments, and 

Regaining Health, (University of Oklahoma Press, 2019), 186-197.

199. See White, “Planting Native Seeds in a Modern World,” 189-190.

200. Jack Ralph Kloppenburg Jr., First the Seed: The Political Economy of Plant Biotechnology, 2nd ed. (Madison, WI: 

University of Wisconsin Press, 2004), 50- 60. 

201. 7 U.S.C. § 2201

202. 7 U.S.C. 321 et seq. 

203. 7 U.S.C. 361 et seq.

204. USDA – ARS GRIN, “Plant Germplasm,” https://www.ars-grin.gov/Collections.
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new traits to incorporate into their projects. NPGS collections include wild crop relatives, varieties 

developed over centuries by farmers, varieties developed with traditional breeding and varieties 

which may contain traits from genetic engineering.

The past century has brought changes that have moved plant breeding firmly into the realm of 

industry. In the late 1800’s, early plant breeders began making controlled crosses between plants 

with different characteristics and tracking the performance of progeny to improve varietal 

performance. This included plant breeders working on staple crops, such as the work of the French 

company Vilmorin in wheat, and the work of Luther Burbank in California in specialty crops. The turn 

of the 20th century brought with it advances in the understanding of genetic inheritance and 

statistics, which shifted crop improvement to a professional discipline of its own. Seed companies 

and nurseries for planting stock of horticultural crops became established. With the advent of 

controlled hybridization in staple crops like maize, companies could recoup costs of breeding 

investment by selling seed to farmers each year. Other crops, such as wheat and beans, are not easily 

hybridized, and reproduce by self-pollinated seed, so farmers could still save reliable seed from 

season to season. Many horticultural crops were reproduced by grafting or other vegetative 

methods, meaning that varieties could be easily cloned. For both clonal and self-pollinated crops, 

this meant that potential competitors could reproduce and sell the variety without any 

compensation to the plant breeder who originated it. Over the next several decades, the seed 

industry began to call for forms of IP protection that could provide plant breeders mechanisms for 

recouping the costs of research and development. The nascent private seed trade also viewed the 

government’s free seed program as competition, and lobbied Congress for the USDA to cease the 

distribution of free seeds to farmers.205

In 1930, Congress established the first form of intellectual property protection for plants in the Plant 

Patent Act (PPA).

206 Because individual fruit trees and ornamentals like roses could be “cloned” by 

making cuttings, nurseries could establish business by offering highly stable and uniform 

populations to their customers in unlimited quantities. However, these propagation methods also 

meant that competitors could quickly develop exact replications of unusual or superior varieties.207

This meant that a plant breeder who produced a unique variety was at risk of quickly having 

competitors selling exactly the same variety without having made any investment in its 

development. Compelled by concerns from trade groups like the American Association of 

Nurserymen, lawmakers passed the PPA, which stated that “whoever invents or discovers and 

asexually reproduces any distinct and new variety of plant... may obtain a patent.”208 When it was 

passed, the law protected the plant only, and not its fruit or flowers, presumably to assure farmers 

and consumers that the Act was designed to cover methods of reproduction and not the food 

205. Kloppenburg Jr., First the Seed: The Political Economy of Plant Biotechnology, 71. 

206. 35 U.S.C. 15

207. Cary Fowler, “The Plant Patent Act of 1930: A Sociological History of Its Creation,” Journal of the Patent and Trademark 

Office Society 89, no. 9 (2000): 625.

208. 35 U.S.C. § 161 (1930).
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itself.209 At the time, Congress was unwilling to extend the scope of patentable material to staple 

crops, and so specifically excluded sexually-reproduced (seed-propagated) plants and tuber 

propagated plants such as potatoes, specifically because potatoes are “propagated by the same part 

of the plant that is sold as food.”210 As the Act was being debated, Representative LaGuardia asked 

Congress to consider a hypothetical situation: “A man patents a new plant or tree and then the seeds 

get out into the market. The seeds are patentable in some way, and farmers plant those seeds. Then 

they are subject to all the penalties imposed by the patent law, and they may be enjoined from 

harvesting their crops,” alluding that such a measure would disrupt farmer livelihoods. The authors 

of the Act assured him that the hypothetical he presented would not manifest, “because seeds have 

been exempted, for the reason that seeds...usually produce plants varying in many respects.”211 The 

Act was passed, but due to rapid advances in plant breeding, which created more geneticallyuniform varieties, the question posed by LaGuardia soon gained relevance in the debate about 

patents and plants.

During most of the early 20th century, plant breeding relied heavily on federal and state government 

support afforded to public breeding programs at Land Grant Universities.212 Breeding programs in 

each state worked on the development of regionally adapted varieties of important crops for their 

state. Seed companies would license varieties or inbred lines for hybrid production from state 

foundation seed programs. At the same time, a growing private seed industry was also developing 

breeding programs, most heavily in hybrid crops such as maize which will not produce true to type. 

Hybridization prevented competitors from commercializing the same variety and required farmers 

to purchase seed each year, which allowed for a recovery of the investment into plant variety 

development. Other than the plant patent system for protection of asexually propagated plants, no 

other form of IP was available for plant varieties for most of the 20th century. The seed of inbred lines 

that were used to make successful hybrids were maintained as trade secrets. In part because of this 

lack of IP protection, many self-pollinated and clonally propagated food crops, including wheat, 

soybeans, beans, and potatoes, relied mainly on public sector breeding programs.

The seed industry, both in the U.S. and internationally, pushed for the development of IP protection 

for seed-propagated crops so that they could protect the investment they made in the development 

of improved varieties. This effort was largely targeted at preventing competitor seed companies 

from reproducing and selling seed of the protected variety at lower cost than the IP holders. The 

International Convention for the Protection of New Varieties of Plants (UPOV) was approved in 1961 

after a convention in Paris, France (See page 30). In the U.S., similar discussions were underway, and 

legislation was passed in 1970 with the Plant Variety Protection Act (PVPA) establishing a form of 

209. Today, the plant patent law provides for exclusive rights to the whole plant and any of its parts: “In the case of a plant 

patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for 

sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so 

reproduced, or any parts thereof, into the United States.” 35 U.S.C. § 163.

210. Hearings before the Committee on Patents, House of Representatives, 71st Cong., 2nd sess., on H.R. 11372, a bill to 

provide for plant patents. (1930), 15. https://hdl.handle.net/2027/umn.31951d035832922.

211. Hearing on HR. 11372: A Bill to Provide for Plant Patents, 71st Cong., 2nd sess., (1930), 8391. 

https://www.congress.gov/bound-congressional-record/1930/05/05/house-section.

212. Kloppenburg Jr., First the Seed.
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intellectual property protection for seed-propagated plants, including most plants grown for food. 

The PVPA affirmed the role and potential of private industry to innovate new crop varieties by 

providing market incentives in the form of a limited period of exclusivity, much like the patent 

system. Several years prior to the passage of the PVPA, the President’s Commission on the Patent 

System acknowledged “the valuable contribution of plant and seed breeders, [but did] not consider 

the patent system the proper vehicle for the protection of such subject matter.”213 Thus, the PVPA

explicitly provided exemptions that allow farmers to save seeds for on-farm use, and for plant 

breeders to use protected varieties for use in their own breeding programs, so long as the result of 

their efforts is a new variety with enough distinction from the original variety that it is not considered 

“essentially derived.” The concept of “essentially derived” is well established for some species such 

as cereals, where a professional code of ethics has governed exchanges among breeding programs 

for several decades and is part of non-binding guidance documents for UPOV.

214 The PVP also allows 

the owner to prevent the export of seeds of the protected variety, a right not specifically mentioned 

in patent law. 

In essence, these exemptions balanced the needs of the seed industry while justifying the creation of 

an alternative to the utility patent system, which allows patent holders to prohibit others from 

making, using, or selling the claimed invention in any way. In the 2018 Farm Bill, many asexually 

propagated species were added to the list of crops eligible for plant variety protection though the 

PVPA, meaning that these crops are now able to be protected by both plant patents and PVP 

certificates.

215 This was done partly due to concerns from the horticultural industry about the ability 

of essentially derived varieties to be commercialized by a competitor under a plant patent, while the 

PVPA protects plant breeders from third parties commercializing an essentially derived variety 

without a license.

In the 50 years following the passage of the PVPA, the Supreme Court issued a series of decisions in 

patent-related cases that had the effect of gradually expanding the ability of companies to use utility 

patents to protect novel varieties and other plant breeding innovations, including by allowing the 

“dual protection” of both PVP certificates and utility patents on seed-bearing crops and their 

associated traits.216 The extension of utility patent subject matter eligibility to living organisms began 

with Diamond v. Chakrabarty in 1980, which allowed for utility patents on living organisms, and was 

reinforced by the U.S. Patent and Trademark Office (USPTO) decision in Ex parte Hibberd (1985), 

which ruled that maize seed was patentable subject matter. The Supreme Court, in J.E.M. Ag Supply, 

Inc v. Pioneer Hi-Bred (2001), held that utility patents could be issued for sexually-reproducing plants. 

In Asgrow Seed Co. v. Winterboer (1995), the Court narrowed the farmers’ exemption in the PVPA by 

curtailing the amount of seed a farmer could save and resell, and in Bowman v. Monsanto (2013), the 

Court ruled that the patent exhaustion doctrine does not permit a farmer to save and replant 

213. To Promote the Progress of Useful Arts in an Age of Exploding Technology: Report of the President’s Commission on the 

Patent System, (Washington, D.C: 1967), 20-21. https://catalog.hathitrust.org/Record/001511264.

214. National Wheat Improvement Committee, “Wheat Workers Code of Ethics for Distribution of Germplasm,” (November 

5, 1994). www.ars.usda.gov/ARSUserFiles/30421000/wheatcode.html.

215. 7 U.S.C. § 2402(a).

216. Diamond v. Chakrabarty, 447 U.S. 303, (1980); Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995); J.E.M. Ag Supply, 

Inc v. Pioneer Hi-Bred, Inc., 534 U.S. 124 (2001); Bowman v. Monsanto Co., 568 U.S. 1151 (2013)
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patented seed. This series of decisions resulted in an IP system in which plant breeders can apply for 

utility patents on plant varieties, plants with new traits developed through traditional breeding, 

genetically engineered traits, and methods of plant breeding, which expands the scope of IP

protection for plants beyond the Plant Variety Protection Act and the Plant Patent Act. 

In the 2010s, the Supreme Court revisited the subject of patent eligibility in a series of cases that

challenged previous decades’ “common-law” approach to defining the scope of patentable 

inventions.217 Two of these cases are of importance to plant breeding and agricultural inputs 

because, while “laws of nature” and “natural phenomena” were already categorically unpatentable, 

advancements in genetic technology had raised new questions about where the boundaries of 

nature were drawn. The first case, Mayo Collaborative Servs. v. Prometheus Labs., Inc., (2012) ruled 

that a claim for a method for optimizing pharmaceutical drug dosage based on a measure of 

metabolites in a patient’s blood was directed to a “law of nature” without any inventive step.218

Theoretically, the same test could be applied to marker-assisted plant breeding, where plant 

breeders identify particular trait-conferring genes and develop methods to create new varieties 

based on the presence of those genes. A second case, Ass’n for Molecular Pathology v. Myriad 

Genetics, Inc. (2013), addressed the issue of patents on gene sequences more directly, deciding that 

isolated, naturally-occurring human gene sequences are unpatentable “natural phenomena,” but 

that synthetic cDNA is patent-eligible.219 Responses to these court cases have been mixed, with some 

arguing that the vagueness of the Mayo framework makes patent rights unpredictable and others 

arguing that the established limits of patentability protect access to important biological 

technologies.220

Some public comments to the USDA’s request for comments also referenced Mayo and Myriad. Pivot 

Bio, a small microbial fertilizer company, argues that “these decisions have left a cloud over the 

validity of patents in this space, even patents which had long-been believed to be valid.”221Another 

commenter noted that the decisions “make sense” but are not being uniformly applied to patents on 

plants, claiming that “despite this ruling and the longstanding judicial exemptions, there are an 

extensive number of patent protections, including utility patents, on native traits in plants conferred 

through traditional breeding and selection.”222 In 2019, the USPTO published updated guidance to 

clarify practices for patent examiners in determining subject matter eligibility as it relates to laws of 

nature, natural phenomena, and abstract ideas,223 and in 2021 issued a request for comments 

217. U.S. Library of Congress Congressional Research Service, Patent-Eligible Subject Matter Reform: Background and Issues 

for Congress, by Kevin J. Hickey. R45918. (2022). https://crsreports.congress.gov/product/details?prodcode=R45918

218. 566 U.S. 66 (2012).

219. 569 U.S. 576 (2013).

220. USPTO, “Patent Eligible Subject Matter: Public Views on the Current Jurisprudence in the United States,” (2022), ii. 

https://www.uspto.gov/sites/default/files/documents/USPTO-SubjectMatterEligibility-PublicViews.pdf. 

221. Pivot Bio, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural Inputs” 

(June 14, 2022), 2. https://www.regulations.gov/comment/AMS-AMS-22-0025-0052. 

222. Anonymous, Comment Letter on “Competition and the Intellectual Property System: Seeds and Other Agricultural 

Inputs.” https://www.regulations.gov/comment/AMS-AMS-22-0025-0063.

223. USPTO, “2019 Revised Patent Subject Matter Eligibility Guidance,” 84 Fed. Reg. 50, (Jan. 7, 2019), 

www.federalregister.gov/documents/2019/01/07/2018-28282/2019-revised-patent-subject-matter-eligibility-guidance.
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regarding patent eligible subject matter.224 The criteria for patents granted on plants, traits, and 

methods of breeding remains under considerable discussion and will likely continue to evolve in the 

coming years.

224. USPTO, “Patent Eligibility Jurisprudence Study,” 86 Fed. Reg. 36,257, (July 9, 2021), 

www.federalregister.gov/documents/2021/07/09/2021-14628/patent-eligibility-jurisprudence-study.
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Appendix B. Methods of Analysis of IP 

Ownership

We undertook an analysis to estimate seed firms’ ownership of granted Plant Variety Protection 

(PVP) and patent certificates from 1970 – 2022. To produce the compiled list of certificates, we 

appended the historic PVP certificates record (13.8K issued between 1973 - 2022) with a dataset of 

patent certificates mentioning any of 230 crop names in the patent title or abstract,225 retrieved 

using the Patents Viewer API (20K issued between 1976 - 2021).226 We verified the consistency of IP 

owner names across patent and PVP certificates.

For many patents, the listed applicant organization name, i.e.: inventor, may have been acquired 

under a new parent company, so we appended a new field with the likely new parent name based on 

merger data. For example, for a certificate listing “Monsanto” as its inventor that was approved in 

2019, we appended a new field with “Bayer,” which had acquired parts of Monsanto in 2018. To do 

this, we matched the certificate’s assignee organization name to the possible new parent name from 

data on 492 historic mergers between 1975 – 2022, provided by Phil Howard. Methods of his analysis 

are described in a 2009 paper,227 and we were provided data on mergers up to 2022, described in a 

recent release.228 Data noted major cases in which the new parent company acquired a specific crop 

division of the acquired firm. We tracked acquisitions by crop when this was noted. Most of the 492 

mergers documented were either not annotated by crop (221) or were recorded as 100% acquisitions 

(90), with 21 being joint ventures. For the mergers noted as joint ventures or partial acquisitions, e.g.: 

40% ownership by Company A – 60% ownership by Company B, we treated each transaction as a 

100% acquisition. 

This process was done for each year from 1970-2022, which ensured that we created a historic 

timeline of ownership for each patent from the year invented to present. For each year, we counted 

IP ownership in terms of numbers of patents and numbers of PVP certificates for each firm by crop.

225. For PVP certificates, we retained the entire set for the analysis and assigned the crop name as that designated in the 

publicly available AMS PVP table. For the patents dataset retrieved, we found it difficult to determine the assigned crop 

name based on the available fields or if they invention was actually related to plant variety or cultivar. We therefore 

assigned a patent to a crop if the text of the abstract or title mentioned the crop name as a text string. We further filtered 

the resulting dataset for only patent titles and abstracts that contained the words plant, seed, cultivar, or variety. Overall, 

our method of cropname assignment for patents does not necessarily obtain the actual crop invention claimed in the 

certificate. Our method also does not necessarily obtain certificates pertaining to new crop varieties solely; the method 

simply identifies any invention whose abstract or title mentions the crop name and “plant”, “seed”, “cultivar”, or 

“variety.” “PVPO Application Status Report.” 2023. https://www.ams.usda.gov/services/plant-varietyprotection/application-status. 

226. Christopher Baker, patentsview: An R Client to the 'PatentsView' API. R package version 0.3.0, (2022). 

https://docs.ropensci.org/patentsview/index.html. 

227. Philip H. Howard, “Visualizing Consolidation in the Global Seed Industry: 1996-2008,” Sustainability 1, no. 4 (2009): 

1266–87, https://doi.org/10.3390/su1041266.

228. Amos Strömberg and Phil Howard, “Recent changes in the global seed industry and digital agriculture industries.” 

(2023), philhoward.net/2023/01/04/seed-digital/.
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To account for IP expiring and becoming part of the public domain, we appended “Offpatent” to firm 

names in the year the IP expired. We were then able to graph ownership based on type (PVP vs. 

Utility Patent) or by crop and firm.

We recognize a few limitations of the analysis. In our analysis, we do not calculate an actual 

economic value of IP, i.e.: identify and weight for high-value or low-value IP owned; instead, we 

weight all IP certificates equally. We did not distinguish between utility patents on varieties, traits or 

methods, or other technology. We also do not have full data on which IP ownership transferred to 

new parent companies for each merger so have made assumptions that IP ownership follows 

company ownership exactly. We have focused the scope of this analysis on estimating the likely 

ownership of IP and describing trends in IP acquisitions/mergers. Evaluating these relationships 

more fully might be appropriate for future analyses.

In the figures below, we show historic ownership and acquisition of utility patent (p) (blue) or PVP (v) 

(yellow) certificates for the crops receiving the highest numbers of certificates. Each ribbon 

represents numeric quantity of IP certificates in each five-year interval that passed from one firm to 

the same firm or to another firm. Y-axis values denote number of patents or PVP certificates. X-axis 

values denote the five-year interval. For example, 2020 refers to 2018 through 2022. Each label in the 

chart displays the parent firm name, followed by total non-expired IP owned in that year, followed by 

percent ownership of IP.
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Figure B1: For canola, which includes rapeseed, most IP owned were patents. Corteva (74%) and Bayer (24%) altogether own 87% of IP, which includes 98% of non-expired canola 

patents. Corteva acquired its IP primarily through Dow and DuPont. Bayer acquired Monsanto around 2018. In contrast, non-top four companies tended to own PVPs. 
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Figure B2: For corn, the top four account for 95%of IP ownership. Bayer is the top patent holder, while Corteva is the top PVP holder. Bayer owns 57% of IP, which includes 71% of 

corn patents and 36% of PVP, followed by Corteva (28% of total, including 53% of PVP and 13% of patents), and ChemChina (10% of total, including 10% of PVP and 9% of 

patents) through its acquisition of Syngenta around 2016.
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Figure B3: For cotton, BASF owns 72% of IP, which includes 70% of patents and 75% of PVP, followed by Phytogen Seed Company (7% of total, including 11% of patents and 2% of 

PVP). As part of the Bayer-Monsanto acquisition and divesture in 2018, BASF acquired Monsanto, which had owned 46 percent of cotton IP.
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Figure B4: For forage, which includes alfalfa, most IP owned were PVP certificates, with fewer acquisitions, i.e.: labeled firm name tends to be the same from one year to the next. 

Non-top 12 firms currently own the largest share (27%), followed by Pure-Seed Testing (19%), Rutgers University (12%), DLF (9%), Peak Forage Genetics International (57% of 

patents), and Corteva (18% of patents).
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Figure B5: For soybean, the top four firms own 84% of IP. Corteva owns 33% of IP, which includes 51% of PVP and 25% of patents, followed by Bayer (43%, including 46% of 

patents and 37% of PVP), and ChemChina (7%, including 7% of patents and 6% of PVP). 
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Figure B6: For wheat, most IP owned were PVP certificates. The top four account for 51%ownership. Corteva owns 23% of wheat IP, including 47% of patents and 16% of PVP. 

Bayer owns 17%, including 27% of patents and 15% of PVP. ChemChina owns 11%, including 13% of PVP. 
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Appendix C: Seed Industry Diagrams

See page 47 for an explanation of the different types of seed companies. 

Diagram Color Chart (left) and Vertically Integrated Seed 

Company (right)
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Vertically and Horizontally Integrated Seed Company
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Trait Developer

Cultivar Developer
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Seed Dealer

Seed Retailer
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