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GM trait patent expiration, saved seed and breeding programs

Attorney Joel Cape on expiration of RR1 trait. Explains how expiration impacts farmer saved seed, breeding programs.

With the patent set to expire on a Roundup Ready trait (RR1), attorney Joel Cape is set to make a return to the Arkansas Seed Growers Association meeting on Jan. 25.

For more, see here.

In 2006, Cape spoke to the association on seed law history and where biotechnology fits in the legal picture. (For more, see U.S. seed law history: a primer). At the coming meeting he will update those comments and expand on what the trait’s expiration means for farmers looking to save seed and how it will impact breeding programs.

Cape recently spoke with Delta Farm Press. Among his comments:

On RR1…

“The original Roundup Ready gene consists of different pieces of DNA and each was put together to make a functional gene. There was more than one patent on that gene because several of those individual parts were also patented by themselves.

“The last of those patents on the original Roundup Ready gene is set to expire. That does mean that seed containing the RR1 will, essentially, be unrestricted. This means that growers can generally plant and use seed with the RR1 gene without an obligation to pay royalties or a prohibition on saving seed.”

On breeding programs and developing varieties with the RR1 gene…

“Using the RR1 gene to develop generic versions of seed with the trait is more complicated process. Breeding the trait into your own lines is only part of the path to getting a product that can be commercialized.

“There are also various regulatory hurdles that need to be analyzed before just taking that gene and putting it into your own lines. You have to jump those before commercializing such a product – there is more than one regulatory agency to go through to keep RR in the marketplace. EPA is one along with the FDA and USDA. There is a fairly complex regulatory regime.”

On farmers being able to save RR1 seed…

“They will be able to save the seed, but with a caveat. The gene may be in seed that is subject to other protection.

“The Plant Variety Protection (PVP) Act has been (in force) at least since the 1970s. That gene may be in germplasm that has a PVP on it.

“The gene may also be in germplasm that has a utility patent.

“The short answer is: Yes, you can save seed. The longer answer is: You might want to pay close attention to the seed you’re buying before deciding to save it. There may be other protections that cover the rest of the genetics in the seed. Don’t just throw caution to the wind – you still need to pay attention to what you’re planting.

“People have traditionally believed that PVP-protected material can be saved. I don’t think it’s quite that simple. There is a ‘farmer-saved seed’ exception but I also think you can agree not to save it.

“This will be the thrust of the talk I’m giving at the Seed Growers meeting since I’ll be talkingwith farmers that need to make planting decisions.”

Since you first addressed seed patent laws at the Arkansas Seed Growers meeting, have you noticed the questions you’ve been getting regarding the patent laws and seed have shifted?

“Truthfully, no. There is a basic level of awareness of patents which has been established in the farm community over the last 15 years.

“That being said, the level of awareness depends on the crop to some degree. In soybean production, the message has been pretty thoroughly communicated that saving seed is something that is not available for many varieties. That’s simply because the RR trait in soybeans has been very popular and it’s been widely licensed. The bottom line is people like Roundup Ready and the educational message has gotten out.

“The same is largely true for other major crops such as cotton and wheat.

“Nowadays, there are patents on other beneficial traits in a variety of crops. The different ways in which other patented crop traits are licensed and marketed makes a difference in the knowledge that growers may not have a specific awareness of how the law impacts the use of property laws in agriculture. But the extent of that knowledge will vary.”

Where do you range?

“For the most part, anywhere I’m asked. I’ve been fortunate in that my law practice has been national in scope and my cases have taken me all across the country. In my agricultural practice, I’ve had the benefit of working with several different crops and producers in all types of production settings.”

Do you still focus on these issues in your practice?

“I do. My law practice has broadened since moving back to northwest Arkansas from New Orleans last summer. I try to help folks solve problems, either by heading off a potential issue before it comes up, or by jumping in after a difficulty arises. I also went to law school at the University of Arkansas in Fayetteville.”

On Cape’s Jan. 25 Arkansas Seed Growers presentation…

“In my experience, farmers want to know ‘what can I do now? What is allowed?’

“The message is: seed with the RR1 trait will no longer be under patent and you may be able to save it. But pay close attention what else may cover the seed.”

Looking forward…

“There’s a whole lot of interest in the RR1 trait coming off patent.

“Another aspect of this is seed companies have been curious as to what they can do and when.

“But there is probably even more interest in the next generation of traits that are being developed to address various environmental stresses, such as drought tolerance, cold tolerance, salt water tolerance, and others. There is a great deal of effort being directed towards developing plant material that can perform in challenging growing conditions. The potential benefits of these kinds of traits are a big deal because they may make the difference between having a decent crop to harvest, or no crop at all.”

Monsanto information about RR traits available here and here.

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