Farmers know that the seed they plant has patent protection. Even the non-GMO varieties and hybrids they buy have plant variety protection under the farm bill’s Plant Variety Protection Act.
Farm Progress talked with a tech lawyer about that issue, and even explored the changing nature of genetics and intellectual property. All relate back to what you raise, or someday may raise, on your farm.
Chris Holly is an intellectual property attorney with Cooley LLP, a firm that works with a wide range of startups. The firm has offices in New York and in locations as far away as Beijing, China, and it has worked with a wide range of startups. A key area for most startups is protecting the tech and tools developed. Holly has an ag background and has worked on a number of issues related to plant intellectual property.
“The farm bill brought a significant change to the Plant Variety Protection Act,” Holly pointed out. “Up until this new farm bill, the PVP protected sexually produced plants, but you couldn’t use that protection for asexually produced plants.” This changed with the farm bill, and now those plants — often produced from clones or cuttings — are protected. This is big for the flower industry, and a change that was developed with help from the American Seed Trade Association.
Key change for flower industry
One particular area in which the farm bill’s change is significant is in the flower industry, where there was a problem with people asexually reproducing protected varieties in order to create somewhat different, but essentially derived, varieties (EDVs).
“Until this change, essentially if you had a PVP-protected plant that was then asexually produced and cloned by a third party to produce an EDV, there could be no PVP enforcement or litigation for using that material and asexually producing such an EDV,” he said. “Now, the flower industry can go after those infringers. It closed a loophole.”
Of course, you would need genomic information to prove the plant was your company’s. But that area of science has rapidly evolved, and now genomic testing is readily available, which has changed the world of genetic intellectual property protection.
Holly looks back in history to a time when seeds would be taken, and there would be no way to prove that a particular corn hybrid came from another company. Those days are long gone, since companies can easily run a DNA test on a suspect seed, and catch anyone who has taken a variety or hybrid simply by comparing the test with a reference library of material owned by the company. He explained that this kind of theft has fallen away due to that testing — except in the case of those Chinese interlopers trying to steal germplasm. They were later caught by the FBI.
But the world of plant genetics is moving fast. What does this follower of intellectual property think about innovations such as gene editing?
A remarkable tech
“You might not believe me, but I think gene editing is to agriculture what Henry Wallace’s hybrid corn, or Norman Borlaug’s semidwarf wheat, were to the industry,” Holly observed. “Gene editing is not merely for neat new vegetable varieties, but it can also make staple commodity crops drought-resistant and grow in places where plants don’t normally grow. Gene editing for feeding a growing population is that important.”
He acknowledges that with gene editing, scientists may be able to breed good traits into heirloom vegetables; but perhaps more importantly, “From a humanitarian standpoint, the promise of gene editing is its ability to serve as a crucial tool to help feed the global population,” he added.
Yet Holly is frustrated by the move earlier this year in the European Court of Justice to consider gene-edited crops as if they were genetically transgenic — or GMOs. “The U.S. takes a product-centric view of gene editing,” he explained. “If the end product plant could have been derived through traditional plant breeding, then the U.S. does not see a need for additional regulation.” The U.S. system focuses upon the end product that will be consumed.
But in Europe, they worry about the process, not the product. Holly added that gene editing simply does what a plant breeder does with traditional techniques, but more precisely and faster.
Gene editing logic
He said that the European comment that gene editing is unnatural is logic that breaks down when you look at other ways that plants are bred, or changed to improve performance. “OK, we will allow random mutagenesis using chemicals or radiation that can bring off-target genetic modifications — but not allow precise gene editing?”
As an observer of genetic development and tech, Holly remains optimistic. The addition of big data into the development process is another innovation he sees that has value. “Big data touches everything from genetics to agronomics, from how a plant will grow through the distribution channel, and even seed stewardship,” he said. “As the data continues to accumulate and the machine learning algorithms get smarter and smarter on the genetic side, this will enhance plant performance.”
The future of genetics will involve protecting the work done in the lab, and those tools are getting better. Holly’s observations as he follows technology developments shows that next-level plant development is just getting started.