b'Finding the Value in HeirloomsWhat intellectual property issues could arise from heirloom seeds?Alex MartinIF YOUVE WORKEDin the vegetable or flower seedWeatherly uses the example of heirloom varieties like sector, youre likely to have come across an heirloom variety.Cherokee Purple, another heirloom purple tomato. Usually these varieties are very old, and sometimes it is difficultWhen the patent or PVP office is looking to evaluate your to track down information about the original breeder or wheretrait or variety for novelty or distinction, they are more than likely the variety came from. Sometimes, its very easy, though!going to look at old patents, journals and past seed catalogs and Many heirloom varieties have been passed down throughto look at old varieties to see whats been out there, he says. In family generations or cultural tribe generations and have quitethe example of a purple-colored tomato, a patent examiner may the storied history that accompanies them.find an old variety such as Cherokee Purple with a similar purple But the question Seed World took to James Weatherly,trait. Which leads to the question as to whether the purple trait is founder of Weatherly IP Solutions, was simple: What intellectualnovel and patentable?property (IP) issues could arise from these heirloom seeds? However, another situation that can arise is the idea of creat-ing a new, novel variety from an heirloom variety. Heirlooms Compared to New Varieties Again, using the idea around Cherokee Purple, Weatherly The answer quickly became while there could be issues that popexplains that if you were to breed and develop a new variety of up concerning heirlooms, heirloom varieties are more likely toCherokee Purple, then mostly likely you can get patent and/or hinder the ability to get patent or Plant Variety Protection (PVP) PVP protection for that new variety. than to actually be protected by IP rights.In theory, it really shouldnt be considered an heirloom after Traditionally, when somebody comes to me and says, Hey,that, Weatherly says. It may be an improved heirloom, but its weve got this heirloom variety we want to protect, we oftenwould appear to be a new variety.follow up with the question: How long has it been sold? heAll-in-all, Weatherly cautions, as always, if you are planning to says. If they tell us it was sold back in the 60s and 70s, well,breed with what you believe is an heirloom variety, double check theres an issue with that.that there isnt IP protection on the variety.But if you believe you To get a patent or PVP in the U.S., the application must beare free to breed with the heirloom and develop a new variety, filed within the first year of selling or distribution for the variety.make sure you get protection, either patent or PVP, on the 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.SW82/ SEEDWORLD.COMINTERNATIONAL EDITION 2021'