Intellectual Property Protection for Plant Innovation: Unresolved Issues After J.E.M. v. Pioneer

摘要: In December 2001, the U.S. Supreme Court confirmed that plants are eligible subject matter for protection under utility patent regime, notwithstanding existence of limited forms intellectual property Plant Patent Act (PPA) and Variety Protection (PVPA). As fundamental as J.E.M. decision may be, confronted only one relatively narrow issue acquisition in It will now fall to lower courts work out how numerous other issues law doctrine apply plants, Congress consider broader policy concerning relationship among IP regimes plants. this article, we analyze decision, identify leaves unresolved, explain those have begun manifest themselves recent plant disputes. The case concerned an acquisition, so had no occasion comment on scope enforcement patents plant-related innovation. One such is whether infringement can occur a consequence pollen drift. case, conclude (and legislatures) would be well-advised not craft special regime patented Seed saving by farmers raises analytically similar surrounding experimental use law. Whereas statute includes express exemption from seed farmer saves re-uses, PVPA does include saved-seed exemption. Sellers limit implied license employing restrictions condition sale item. Whether these agreements enforced has recently been litigation. Major producers typically bags (called "bag tag" or "seed-wrap" licenses), when purchasing seed. Appeals Federal Circuit upheld Monsanto's Roundup Ready technology agreement against challenge mounted Mississippi farmer, Homan McFarling. McFarling others like it likely spur state legislatures into passing legislation seek regulate contracting practices producer-grower transactions. Within past year, seed-contract proposed states Farm Belt. Some legislative proposals purport outlaw contract provisions prohibit saving. specify where grower suit infringement. Proposals type well prove controversial. Although authority contracts (including contracts) affecting their citizens, lack enact regulations conflict with federal regime. Courts called upon draw line future cases involving seed-wrap arguably regulations. Turning away towards concerns, major question after there remains meaningful long-term role variety PVPA. cheaper obtain than protection, facilitate branding. addition, superior trade secret preclude reverse engineering. However, expect quickly emerge dominant form domestic industry. arrangement optimal important policymakers.