Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 388

resources, three modes of protection are available in the United States. In 2013, in
Bowman v. Monsanto Co., the Supreme Court held that the patent exhaustion doctrine
was not applicable to patented seeds, meaning that the farmer did not have the right to
reproduce patented seeds through planting and harvesting without the permission of
patent holders. Thus, farmers in the United States, under this ruling, do not have the
right to replant or sell the produce as seeds to others unless those activities are done with
the permission of the patent holder.
As we see from the cases discussed above, the strongest position on intellectual
property rights in plants has evolved in the United States. The position is summarized
as below:
Plant Variety Protection Act— Applicable for species that undergo sexual reproduc-
tion and for tuber propagated plants and first generation (F1) hybrids
Patent Act— Protection for inventions that meet the requirements of utility, novelty,
and inventive step is available. This facilitates patenting of biotechnological inven-
tions and genetically modified organisms (GMOs).
Plant Patent Act— Applicable for species of vegetative and asexual propagation
excluding edible tubers. This is used widely in the case of ornamentals, fruit, and
forest trees.
In Europe, the Union for the Protection of New Varieties (UPOV) was established in
1961.10 In 1970 the Plant Variety Protection Act (PVPA) was enacted in the United States.
Under this act, protection is given if it is proved that the three criteria (“novelty,” “uni-
formity,” and “stability”) are met.11 If the conditions are met, a certificate of protection is
given and this gives the holder the exclusive right to use the variety for seventeen years
from the date of issue. Significantly, PVPA also provides for exemptions to farmers and
for research purposes. Similarly, the UPOV Convention defines norms for protection
and exemptions. Both the PVPA and UPOV Convention were amended later, resulting
in strengthening the rights of plant breeders with restrictions on both the farmers' rights
to reuse seeds and the plant breeders' exemption, thus enabling use of germplasm for
varietal development.
According to the 1991 UPOV Convention, the right to save seed is classified as a farm-
ers' privilege, and it is an option for members to consider “within reasonable limits and
subject to the safeguarding of the legitimate interests of the breeder” (Article 15(2)).12
The rights granted the plant breeder for a protected variety, generally, are the exclusive
rights to do or to permit (normally by licensing) the following acts in relation to the
propagating material of the protected variety:
1. Produce or reproduce the material
2. Condition the material for propagation
3. Offer the material for sale
4. Import/export the material, and
5. Stock the material for the above-mentioned purposes.