Genetic Patents and Seeds

Genetic patents on seeds refer to laws that grant private ownership of seed varieties. With recent developments in biotechnology, patent protection has been extended to include particular plant characteristics. Genetic patents have a long historical trajectory. In the United States, decreasing agricultural productivity in the early 20th century led to a series of official mechanisms establishing state support for basic agricultural research and laws to promote the interest of the agricultural seed industry. This included the Plant Patent Act of 1930, covering plant varieties that could be commercially reproduced asexually through techniques like budding, grafting, and cutting. From the 1930s on, there was increasing pressure from the agricultural industry to put stronger official laws in place. This culminated in the Plant Variety Protection Act (PVPA) in 1970, which granted proprietary rights to novel, sexually reproduced seed plants.

A decade later, key government decisions provided the legal architecture for the emergence of the agricultural biotechnology industry. These included the 1980 Supreme Court Chakrabarty decision, [Page 743]which granted patent protection for a microbe engineered to degrade crude oil and the 1985 Hibberd case, which established the patenting of genetically engineered plants. With the rapid development of biotechnology in the United States that followed, companies like Monsanto used the legal protection of patents to make increasingly broader ownership claims over genetically modified organisms (GMOs). To do so, they focused on securing early patents on key commercial crops and using these patents for leverage in licensing agreements.

Although adopting stricter regulations over biotechnology, western European countries were historically the first to coordinate regional patent efforts. In 1961 they established the Union for the Protection of New Varieties (UPOV), creating a framework for international plant-patent protection. UPOV has undergone three revisions (1972, 1978, and 1991). The United States joined in 1981 and from the mid1990s through the present, membership has expanded to 61 countries. This is largely due to the General Agreement on Trade Related Intellectual Property Rights (TRIPS), created in 1994 within the World Trade Organization (WTO), requiring countries to adopt intellectual property rights as part of free trade negotiations.