By Mara Sanders, Plant Variety Examiner
If you are a plant enthusiast like myself, you might get pretty excited browsing next season’s plant catalogues. But all the acronyms (from TM to PVPA) might have you wondering who spilled the alphabet soup next to this year’s exciting new varieties. After all, who has the right to protect varieties?
While protecting plants that have been freely reproducing and surviving on their own for centuries can seem like an infringement of their rights, learning a bit more about plant breeding and germplasm resources can shed light on the critical importance of variety protection and how it plays a role in creating innovation. A variety of the species, developed by human action and choice, is what is protected, not the species itself.
Imagine that you are a plant breeder at an Agricultural Extension Office at a local university. You have been hired to assist local farmers in accessing resources to make their farms more profitable and sustainable. Perhaps your area is facing unique environmental challenges and your farmers’ production is falling behind because heirloom and commercially available varieties aren’t performing in this area. For this example, let’s say that the farmers have been growing a well-known heirloom red bell pepper variety, ‘Early California Wonder’, but are looking for some added disease resistance and a different color.
As a savvy plant breeder, you know that varieties protected under Plant Variety Protection Certificates have a research exemption under their protection. Meaning you are able to use the newest releases by the top agricultural companies and breed them with ‘Early California Wonder’ to develop a pepper that performs in your unique environment but provides the other characteristics your farmers are looking for.
To start this process, you need to make crosses between the protected variety and ‘Early California Wonder’ and select from among the varied progeny (or results), to ensure that you are retaining all the characteristics you want but adding in the disease resistance and different color. This usually takes around 8-10 years, depending on the crop. While some universities work with private companies to do this work, most will cover the cost of the field, supplies, inputs, equipment, researchers, and field personnel. In the end the university, or any breeder, has invested heavily in developing the new variety and needs to regain the income that may come from their innovation if they are to continue breeding and developing the next great variety.
After successfully breeding an orange bell pepper with similar traits to ‘Early California Wonder’ but added disease resistances, you hand your new variety off to the university’s technology transfer or intellectual property (IP) office to be protected. Depending on the university’s IP strategy, they might choose patents or plant variety protection, depending on how they want to market the variety. For this example, let’s assume that after considering the protections such as plant patents/utility patents/trademarks under the Department of Commerce’s Patent and Trademark Office, your IP Office chooses Plant Variety Protection. Keep in mind that it is perfectly acceptable and quite common for breeders to choose (and pay for) multiple types of protection for their new variety.
At the Plant Variety Protection Office anyone who has developed a variety can apply for a Plant Variety Protection Certificate, including individuals, companies, or public institutions. All applicants must follow the same guidelines and application requirements. For varieties to be eligible for protection they must be:
New: Not sold commercially or not sold for more than one year in the United States or more than four years Internationally
Distinct: Distinguishable from any other publicly known variety
Uniform: Any variations are describable, predictable, and commercially acceptable
Stable: When reproduced, the variety will remain unchanged from the described characteristics
After application, an examiner from our office will check the information provided by the applicant against our database of protected varieties and those of common knowledge. If everything is in order, payment has been received, and a sample of the germplasm is deposited, the applicant will be issued a certificate of protection for their variety.
The certificate allows the applicant to exercise exclusive rights to market, propagate, sell, and import/export the variety. There are exemptions to the certificate that allow the public to save some seeds, produce new varieties, use the variety in research, and propagate for non-commercial use (within the limits of other protections). After 20 years of protection (or 25 years for woody trees and vines) it becomes publicly available for all to use and the process to begin again.
Resources:
Plant Variety Protection Office: https://www.ams.usda.gov/services/plant-variety-protection
Patent and Trademark Office: https://www.uspto.gov/
List of protected varieties: https://apps.ams.usda.gov/CMS/
Photo Credits: 1) Fruit (USDA Flikr database); 2) ‘California Wonder’ peppers (www.anniesheirloomseeds.com); 3) Seed selection (USDA Flikr database); 4) Seedling germination (USDA Flikr database); 5) Tigist Masresra, a technical assistant, working in the Highland Maize Breeding Program at Ambo Research Center, Ethiopia (CIMMYT/ Peter Lowe, Rural21 Journal); 6) Peanuts and pecans (USDA Flikr database).
Mara Sanders is a plant variety intellectual property professional at the United States Department of Agriculture with a research background in plant science and experience in germplasm collection and management. She holds a Master of Science in Plant Biology and a Master of Business and Science in Global Agriculture, both from Rutgers, The State University of New Jersey. Currently, she is a plant variety examiner with the Plant Variety Protection Office at USDA, covering crops such as pepper, lettuce, potato, and grapevine. She also serves as a member of the International Union for the Protection of New Varieties of Plants (UPOV) Technical Working Party for Fruit Crops, as an expert on the Ad Hoc Technical Expert Group on Farmers’ Rights for the International Treaty on Plant Genetic Resources for Food and Agriculture, and as a member of the Association of Official Seed Certifying Agencies (AOSCA) Sunflower Review Board. She is passionate about food security, specifically, the role seed systems and germplasm resources play in creating sustainable agriculture systems.
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