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Increasing transparency, encouraging competition and supporting innovation can offer farmers better choices in the seed market

Joint blog by Thomas J. Vilsack, Secretary of Agriculture, and Kathi Vidal, Undersecretary for Intellectual Property and Director of the US Patent and Trademark Office

Rice harvest on a farm in Texas
Photo courtesy of USDA

The President, in his July 2021 Executive Order on Promoting Competition in the American Economy, outlined a multi-pronged plan to increase competition in the seed and agricultural sectors. Included in this plan is a request for the United States Department of Agriculture (USDA), in consultation with the United States Patent and Trademark Office (USPTO), to submit a report to the White House Competition Council on relevant concerns and strategies to help “that While the intellectual property system encourages innovation, it does not unnecessarily reduce competition in seed and other input markets.”

The Biden-Harris administration, including the USDA and USPTO, recognizes the importance of seed and agricultural innovations, including those that will mitigate climate-related disruptions to our food and farming systems. With more choices and crop varieties tailored to local conditions, farmers can generate potential revenue. In addition, the diversification of variety development and the production of seeds and other seedlings will make supply chains less vulnerable to disruption, incentivize new entrants to enter the market, and create a fairer and more competitive market.

Investing in innovation in the seed and agricultural industries is made possible in part by our intellectual property laws. The foundations of these laws were written into the US Constitution by our nation’s founders, and innovators can use patents and plant variety protection to recoup and benefit from their investments during limited lives. In fact, the USDA began life as the Department of Agriculture of what was then the Patent Office, which distributed free seeds to farmers to encourage agricultural production in our country’s early decades. Seeds have over time been recognized as part of the intellectual property system by the Plant Variety Protection Act 1970 and more recently by a series of court cases recognizing the availability of utility models for seeds.

Today, the intellectual property system affecting seeds is diverse and robust. For example, the Plant Variety Protection Act allows farmers to keep seeds for their own use and allows plant breeders to conduct research to develop the next variety. Our patent laws also allow and encourage the disclosure of inventions and allow others to build on those innovations. These delicate balances aim to reward and stimulate those who do the work to create original innovations, as well as protect the public interest in continued innovation and fair competition.

But more needs to be done to ensure that the intellectual property system meets the needs of today’s farming community. While strong intellectual property protection can provide incentives for seed and agricultural innovation, our patent system must not be used to unnecessarily restrict competition beyond what is legally permissible.

To further the goals of President Biden’s executive order, the USDA recently completed its report in consultation with the USPTO Director, and the two agencies exchanged letters outlining numerous initiatives they will be taking to advance the agenda of the USPTO implement President. As part of a newly established USDA-USPTO Competition and Intellectual Property Working Group, these initiatives will strengthen our relationship and expand the resources available to assess patentability and address cases where patents are being used to unnecessarily restrict competition.

Joint initiatives of the new working group include:

1. Exploring joint USPTO-USDA opportunities to gather broader stakeholder input from researchers, plant breeders, farmers and others in the seed and agricultural input markets,
2. exploring initiatives to improve the quality of the patent examination process for innovations related to agricultural products and processes, including ways to improve prior art search capabilities and provide additional training and guidance for patent examiners,
3. Collaborate on initiatives that improve the transparency of IP information for agricultural innovation and assess the availability and viability of patented and unpatented germplasm, and
4. Review and evaluate new proposals to encourage and protect innovation in seeds and agriculture, including the broader introduction of research or plant breeder exceptions when US utility model patents cover seeds.

The USPTO is keen to work with the USDA’s new Farmer Seed Liaison to enable greater interaction between the agricultural sector and the IP system. The USPTO and USDA will continue to work together to develop policies aimed at protecting and promoting US innovation in seeds and agriculture while driving competition that supports farmer and supply chain resilience.

We invite the public to participate in this process through upcoming outreach events and listening sessions, and we look forward to hearing a variety of perspectives on these important issues.

For more information on the Biden administration’s seed initiative, visit the USDA’s seed competition website.

Posted at 13:08 07.03.2023 in USPTO |

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