U.S. Plant Variety Protection: Sound and Fury...?

This Article offers a critical reassessment of U.S. approaches to intellectual property protection for plant innovation. Three developments make this reassessment timely. First, the Supreme Court has finally confirmed that utility patent claims to plants and seeds satisfy the 35 U.S.C. Section 101 subject matter eligibility requirement. Plant innovation in the United States is now subject to utility patent protection, as well as concurrent protection under the Plant Variety Protection Act (PVPA). However, little work has been done to explain the role of PVPA protection in a system of concurrent protection, or to develop a coherent policy vision within which the utility patent and PVP systems might operate. Second, technological advancements, particularly in plant biotechnology, are making clear the value of germplasm. U.S. patent and PVPA regimes must be optimized to encourage private sector investment in germplasm development while retaining reasonable access to germplasm to accommodate farming practices and public sector activities. Third, intellectual property protection for plant innovation is a key international intellectual property issue. The TRIPS Agreement expressly allows World Trade Organization (WTO) countries the option of adopting sui generis plant variety protection systems as an alternative to - or in combination with - utility patent protection for plant innovation.This Article focuses on one facet of the reassessment project: the role of plant variety protection in the U.S. intellectual property system. We first assess U.S. plant variety protection from an historical and comparative perspective, analyzing the emergence of the concept of "breeders' rights" in Europe and its eventual appearance in the United States. We then delineate the "essential traits" of the modern PVPA and note its points of divergence from a patent-like model. Next, we conduct an empirical analysis of the modern PVPA in which we present the results of statistical PVP data and anecdotal studies of PVPA acquisition, licensing, and enforcement activity for corn and soybean crops.We draw a number of conclusions from these studies. First, the history of plant variety protection regimes in the United States and abroad reveals that the role of plant variety protection in the overall intellectual property scheme has mutated greatly without any fundamental changes to the general statutory approach to plant variety protection. Whereas plant variety protection was initially designed as the primary (or even exclusive) form of intellectual property protection for seed-grown plants, the coming of plant biotechnology, and the dawning acceptance of utility patents for plants, has relegated plant variety protection to a secondary role. Modest statutory amendments to the PVPA have shown no real promise of lifting the PVPA up from this secondary status. Second, our empirical assessment of licensing and enforcement activities concerning U.S. plant variety protection certificates confirms that the PVPA regime as presently constituted plays only a marginal role in stimulating plant breeding research in the United States. Our assessment strongly suggests that the PVPA does not provide patent-like ex ante innovation and investment incentives and that the PVPA has not generated substantial ex post licensing and enforcement activity. Instead, its role in the United States appears to be very modest: it may serve as a marketing tool; it may provide some non-propagation licensing rights akin to contractual shrink-wrap rights, enforceable against those who deal in "saved" seeds; and it may provide a superior alternative to trade secret protection - for example, for seeds whose secret parent lines might otherwise be revealed through reverse engineering. Third, the insights from this paper have implications beyond the area of plant intellectual property rights. For example, we intend to adapt our analysis to analyze the effectiveness of other sui generis, technology-specific, legislatively created intellectual property rights, such as the Semiconductor Chip Protection Act. We then intend to formulate broader conclusions about the effectiveness of "small" and porous, technology-specific intellectual property rights regimes.