With my position as executive director of the Seed Innovation and Protection Alliance (SIPA), I have the privilege to attend a wide range of seed industry meetings. It never fails, whether I am at a grass-, wheat-, soybean- or vegetable-focused meeting, I always hear someone say, “They can’t do that, that is my proprietary seed!” My response is always, well … “why is your seed proprietary? What makes it proprietary?”
Webster’s Dictionary defines “proprietary” as:
1. one that possesses, owns or holds exclusive right to something.
2. something that is used, produced or marketed under exclusive legal right of the inventor or maker (specifically: a drug (such as a patent medicine) that is protected by secrecy, patent or copyright against free competition as to name, product, composition, or process of manufacture).
3. a business secretly owned by and run as a cover for an intelligence organization.
In the seed industry, “proprietary” is often used to indicate germplasm or breeding methods that are solely used internally within a company for breeding or research. Often these breeding methods or germplasms are protected as trade secrets. There are also times in the industry where the term “proprietary” is used to indicate that a company or organization owns the seed or technology.
So why does this matter? “It is my seed!”
This is correct, you developed this seed or this technology. However, in the course of commerce in the seed trade, there a number of opportunities for you to lose ownership of the seed you created unless you have taken the appropriate steps to ensure that the seed or technology remains proprietary.
Fortunately, there are some simple steps you can take to prevent loss of your rights, including contractual agreements such as end user agreements, material transfer or testing agreements and production agreements, patent rights and plant variety protection (PVP).
In the U.S., contractual or license agreements are often used as a way to restrict the use of the seed by the licensed researcher, producer or grower. By way of example, a limited use agreement between a farmer and a breeder may require that seed from the variety can only be used to produce one commercial crop and cannot be used for planting, transferred or provided to any party for crop breeding, research or seed production.
In addition to contracts, specific seed varieties, characteristics and improvements may be protected in the U.S. by one or more patents. In general, a patent allows the patent holder to prevent others from making, using, offering for sale and selling or importing the claimed invention into the United States. For the seed industry, this coverage can be an additional form of protection to prevent or restrict others from producing or selling your seed, thus helping to maintain your ownership of a seed variety or technology.
Finally, PVP protection is another option for seed varieties. PVP protection is used by developers of new varieties to restrict the use, marketing and sale of a variety. However, unlike a patent, a PVP allows a farmer to save seed in certain cases.
It is important to note that just getting a contract in place to restrict making or using a seed, or procuring a patent or PVP, is not the end of the story. You also have to get out there and ensure your licensees are following the terms of the agreements and you have to police your patent and/or PVP rights.
In summary, just stating that a seed is your proprietary seed is not enough. To maintain ownership of that seed or technology, you have to take some steps. Using contracts, patents and PVP protection can provide important mechanisms to protecting your proprietary rights to seed and seed technologies and ensures that somebody else does not take ownership of your seed.