Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 387

across generations. Thus it was possible to improve existing varieties by back crossing
with germplasm from other countries' varieties that possessed the desired traits. In the
1930s, hybridization was established as a new technique to develop new plant varieties.
The hybrids produced high yields when first employed; however, in subsequent seasons
the farmer had to buy seeds again to get the same or higher yield.9 In the United States,
based on demands from the private-sector plant-breeding and seed industry, the Plant
Patent Act was passed. The key feature of this legislation was the grant of patent-like pro-
tection to asexually propagating species.
A historic decision given by the U.S. Supreme Court in 1980 gave a new understand-
ing about what could be patented. In Diamond v. Chakrabarty, the products-of-nature
bar on patenting living products was overturned. The Court ruled that a human-made
microorganism is patentable subject matter as a “manufacture” or “composition of
nature.” The majority opinion held that the genetically modified microorganism was
“not nature's handiwork, but his own; accordingly it is patentable subject matter.” his
radical concept of human agency as enunciated in Diamond raised many questions and
the decision was widely debated. The reverberations are heard even today, particularly
in the context of patenting genes. Although the judgment was very clear about patenting
criteria, the PVPA office rejected applications for nonhybrid plants based on the reason-
ing, or the understanding, of the separate protection regimes for plants. But a ruling
given in 1985 clarified the matter, one that was further affirmed in another ruling given
in 1987. In Ex parte Hibberd the issue was whether a patent could be issued covering the
tissue culture, seeds, and whole plant of a maize line selected from that tissue culture, as
applied by Kenneth Hibberd. The Appeals Board gave the opinion that as long as the cri-
teria for patents (i.e., novelty, utility, and non-obviousness) were met, there was no bar
in granting patents, and PVPA and PPA do not limit such claims [ Ex parte Hibberd , 227
USPQ 443 (Bd. Pat. App. & Inter. 1985)]. Thus the board concluded that patents could
be issued for all plants, including open-pollinated seeds. The utility patent offers a very
strong protection when compared to plant breeders' rights. The breadth of the patent
claim could include plants, modified genes, and seeds; thus, the former differentiation
between sexually reproducing and asexually reproducing was irrelevant. If the technol-
ogy could produce anything that could meet the criteria for patentability, there was no
bar in patenting inventions relating to plants. Patent rights are extensive. Without the
permission of the patent holder, no one can make, sell, or use a product covered by a util-
ity patent. Thus, farmers would be violating the law if they were to engage in selling or
exchanging seeds for consideration if the seeds were the outcome of a plant covered by
a utility patent. The PVPA provided for what is known as a “farmers exemption,” under
which farmers are permitted to sell or exchange seeds; such sales are known as brown
bag sales. But when plant varieties are covered by patents and PVPA, dual protection is
available to the developer. The farmers' right to sell or reuse the seeds is not permissible,
as that would amount to an infringement of the patent right.
In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc ., the U.S. Supreme Court affirmed
that dual protection—i.e., patent protection and plant variety—was permissible for
plant varieties. As germplasm could be protected under trade secrets for plant genetic