b'Finding the Value in HeirloomsWhat intellectual property issues could arise from heirloom seeds?Alex MartinIF YOUVE WORKEDin the vegetable or flower seedCherokee Purple, another heirloom purple tomato. sector, youre likely to have come across an heirloom variety.When the patent or PVP office is looking to evaluate your Usually these varieties are very old, and sometimes it is difficulttrait or variety for novelty or distinction, they are more than likely to track down information about the original breeder or wheregoing to look at old patents, journals and past seed catalogs and the variety came from. Sometimes, its very easy, though!to look at old varieties to see whats been out there, he says. In Many heirloom varieties have been passed down throughthe example of a purple-colored tomato, a patent examiner may family generations or cultural tribe generations and have quitefind an old variety such as Cherokee Purple with a similar purple the storied history that accompanies them.trait. Which leads to the question as to whether the purple trait is But the question Seed World took to James Weatherly,novel and patentable?founder of Weatherly IP Solutions, was simple: What intellectualHowever, another situation that can arise is the idea of creat-property (IP) issues could arise from these heirloom seeds? ing a new, novel variety from an heirloom variety. Again, using the idea around Cherokee Purple, Weatherly Heirlooms Compared to New Varieties explains that if you were to breed and develop a new variety of The answer quickly became while there could be issues that popCherokee Purple, then mostly likely you can get patent and/or up concerning heirlooms, heirloom varieties are more likely toPVP protection for that new variety. hinder the ability to get patent or Plant Variety Protection (PVP) In theory, it really shouldnt be considered an heirloom after than to actually be protected by IP rights.that, Weatherly says. It may be an improved heirloom, but its Traditionally, when somebody comes to me and says, Hey,would appear to be a new variety.weve got this heirloom variety we want to protect, we oftenAll-in-all, Weatherly cautions, as always, if you are planning to follow up with the question: How long has it been sold? hebreed with what you believe is an heirloom variety, double check says. If they tell us it was sold back in the 60s and 70s, well,that there isnt IP protection on the variety.But if you believe theres an issue with that.you are free to breed with the heirloom and develop a new vari-To get a patent or PVP in the U.S., the application must beety, make sure you get protection, either patent or PVP, on the filed within the first year of selling or distribution for the variety.variety. Unfortunately, with these older varieties, that means mostly likelyOne other important thing Weatherly mentions is that one of they are not eligible for patent or PVP protection.the tenants of patent and PVP protection is to encourage new Now, lets say if youre breeding and you come up withinnovations and to provide breeders with a benefit for their inno-a variety or a novel trait, for example, a new purple tomato,vations, that includes 20 years of patent or PVP protection.Weatherly explains. If you want to file a patent for the purpleWe want to encourage new innovations while respecting tomato trait or the genetics around the trait that produced thethe value and hard work that went into old, heirloom varieties.purple tomato, its important to remember that the USPTO willPatents and PVPs are for new innovations and its not appropri-look at old tomatoes, including heirloom varieties, to see if thereate for someone to try and get IP protection on seeds that have have been tomatoes in the past with a purple color. been around and passed down for generations.SWWeatherly uses the example of heirloom varieties like 6/ SEEDWORLD.COMFEBRUARY 2021'