b'PROTECTING INNOVATIONHow Are Innovation andIntellectual Property Connected?TODAY,investment in research and develop- placed on seed containers and/or invoices that typi-ment is bringing more seed related innovations tocally restrict the use of the seed within the container market that benefit both the grower and the consumer.once opened by the grower. Limited Use agreements However, with that investment, the we are also seeingare between the grower and breeder and often require more patents, Plant Variety Protection (PVPs) andthat seed from the variety can only be used to produce contracts associated with these innovations, especiallyone commercial crop and cannot be used for planting, in the field crops.transferred or provided to any party for crop breeding, I get the opportunity to visit a lot of different seedresearch or seed production.related organizations, and some of the questions IIn the United States, trade secrets and trademarks JAMES WEATHERLY receive on a regular basis are, What is a patent? andare additional forms of intellectual property protection Seed Innovation andWhat is PVP protection? and Wow do I know if thisassociated with seed related innovations. Protection Alliancevariety is protected?A trade secret is information a company keeps executive director The answer: its complicated. secret to give an advantage over competitors. In order In the United States there are a number of legalto be considered a trade secret, it must have: potential systems that are used to protect seed and associ- or actual economic value, not be generally known to ated technologies, including patents, Plant Varietypublic and be reasonably protected.Protection (PVP) and contracts.Proprietary breeding materials, chemical formulas, In the United States, specific seed varieties, traits,breeding methods, transformation techniques, mar-improvements and technologies that benefit theketing or business plans and client lists are just some industry may be protected by one or more U.S. patents.examples of trade secrets in the seed industry. The U.S. Patent and Trademark Office administers U.S.Trademarks or brands help to differentiate seed patents and in general, a U.S. patent holder can preventrelated products in the markets. A trademark is a word, others from making, using, selling, or importing the pat- symbol, sound or device, which serves to indicate ented invention in the United States. For patented seed,the source of seed, plants, fruit or other products or WHEREWEB there is no exemption under patent law that allows aservices. This is an important distinction to a patent or ON THE grower to save seed or use seed even if they are notPlant Variety Rights, which are often forms of protec-For more information going to harvest the crop. Those who do save patentedtion on the product or seed itself.on the intellectualseed risk: lost profits, seizure or destruction of crops, asThere are two forms of trademark rights in the property protectionwell as liability for damages to the patent holder.United States: common law and federal rights.associated with PVP is another option for protection of new seedCommon law rights are based upon actual use of a seed, visit the varieties.The U.S. Department of Agriculture admin- mark in commerce and extend to the locations where SIPA website atisters PVP protection and is used by breeders of newa mark has actually been used.An organization who seedipalliance.comvarieties to restrict the use, marketing, and sales ofwants to provide notice of their common law rights or contact James Weatherly at jamesw@ varieties. However, a PVP allows a grower to savemay use thesymbol with the mark.seedipalliance.com. enough seed to replant one years crop on their ownFederal trademark rights are provided through the holdings. Brown bagging or selling the saved seedregistration of your trademark with the U.S. Patent and for replanting is a violation of U.S. PVP law. Please note,Trademark Office. Federal trademark rights provide the that a seed variety in the U.S. may have both PVP andtrademark owner with rights across the entire United patent protection. Where a patent also covers a seedStates and once a mark is registered, allows the trade-protected by PVP, saving seed is not allowed. mark owner with the right to use thesymbol.Many seed varieties are also protected by contract.Unauthorized use of a trademark can lead to mon-Two of the more common forms of contracts for seedetary damages, injunctive relief, confiscation of the varieties are bag/tag agreements and/or limited useinfringing product as well as other damages.SWagreements. Bag/tag agreements are contracts often 34/ SEEDWORLD.COMDECEMBER 2019'