A team of legal experts examine how the seed industry compares to that of other sectors and what has changed. Additionally, James Weatherly breaks down the five primary mechanisms used to protect intellectual property.
It drives our economy. It spurs innovation. It enhances competition. What is intellectual property?
According to the U.S. Chamber of Commerce (USCC), our economy is driven by the need to innovate, create and develop new ways to serve consumers, and the use of intellectual property rewards inventors, researchers, engineers, artists and entrepreneurs for their ingenuity.
At the helm of managing intellectual property (IP) in the United States is the U.S. Patent and Trademark Office (USPTO), which leads efforts to develop and strengthen domestic and international IP protection.
IP, as defined by Seed Innovation and Protection Alliance (SIPA) Executive Director James Weatherly, is the “intangible property right to an idea, invention, work of art or item that distinguishes a product or service in the marketplace.”
However, the issues surrounding IP reach across multiple government agencies, from the Department of State, which is responsible for enforcement, and the Federal Bureau of Investigation, which is responsible for investigating IP infringement, to the Office of Policy and International Affairs, which helps to advise the president and federal agencies on IP issues and U.S. treaty obligations, and the Office of the U.S. Trade Representative, which uses bilateral and multilateral trade tools to promote strong IP laws and enforcement worldwide.
Patent attorneys Michael Ward and Erich Veitenheimer agree that when it comes to the seed industry and IP, companies are behind compared to those in the technology sector, but they are catching up.
Veitenheimer, a partner at Cooley LLP, says most of his clients, if they’ve not already, are in the process of implementing IP processes and are looking for help to fine-tune them.
“Clients are coming in much more knowledgeable and sophisticated in their approach,” Veitenheimer says.
Ward, a partner with Morrison Foerster, says: “The No. 1 driving force is the development of technology. For years, companies have done breeding the same way. Molecular genetics, with DNA sequencing and the ability to dissect the entire genome, has changed everything.
“Now everyone in the seed industry is seeking IP protection. That was not the case 10 years ago. It used to be that people would seek Plant Variety Protection (PVP) through the U.S. Department of Agriculture, but there was Breeder’s Exemption, so the variety could be used in research. Now, breeders rarely seek PVP, instead they seek patent protection.
“There’s a bit of an arms race. For companies, the fear is that they’ll run into somebody with a patent with a broad trait claim and won’t have anything to bargain with at the trading table — this is across the board.”
Weatherly, who started his legal career in 2006 and has been focused on IP and agriculture, says across the board, there’s more and more emphasis on IP and the use of patents to protect innovations.
“We see more and more investment in developing new innovations,” he says. “With that investment, companies need and want a return.”
To protect their innovations and proprietary information, seed companies have a number of tools at their disposal, including patents, PVPs, trademarks, copyrights and trade secrets. Weatherly helps us break it down.
Types of IP
All forms of IP can be found in agriculture and play a very important part in the seed industry, Weatherly says, adding that even client lists are trade secrets.
“Patents and PVPs are property rights that are provided through the USPTO or USDA that allow a patent or PVP owner to prevent others from making, using or selling (or importing) an invention,” he says.
Patents can be used to protect process, machine, article of manufacture, composition of matter and improvements within any of these; whereas, PVP is used exclusively to protect new varieties of seed or tuber propagated materials.
To file for a patent, an innovation must be novel, adequately described or enabled and claimed by the inventor in clear and definite terms. To file for a PVP, a variety must be new, distinct, uniform and stable, and seed deposit must be made. When filing for a patent, unlike when filing for a PVP, the innovation doesn’t have to be distinct; it can be a nonobvious difference, such as a variety with a higher oil content.
Weatherly explains that there are two types of patents: utility patents and plant patents. Utility patents are for seed, plants and plant parts, and provide protection 20 years from priority. Plant patents are for asexually reproduced plants only and also provide protection 20 years from priority.
PVPs, for sexually reproduced plants or tubers, provide protection for 20 years from issue for plants and 25 years from issue for trees and vines.
Less specific to the seed industry are trademarks, copyrights and trade secrets.
Trademarks are words, symbols, sounds or devices which serve to indicate the source of seed, plants, fruit or other products and services. Think logos and brands, Weatherly says, as these help the consumer to differentiate goods and services in the marketplace.
U.S. trademark law is based on the Lanham Trademark Act of 1947, which provides the owner of a trademark the right to prevent others from using the same or a confusing similar mark for the same or similar goods or services. In the United States, trademark rights commence with the use of the mark in commerce.
Have you ever wondered when to use the trademark (™) versus the registered (¬®) symbols? Under common law, the trademark symbol can be used with unregistered marks. Rights are based on its continuous use in commerce and extend only to locations where a mark has been used. Registered marks provide national rights at the time of registration and provide statutory rights; use of the registered symbol is not required.
In the United States, there are five categories of trademarks: fanciful, arbitrary, suggestive, descriptive and generic. Weatherly says trademarks can be very valuable to an organization to help it distinguish products and services. His advice: “Be aware of other organizations’ trademarks, and be creative — don’t use varietal names as a trademark.”
Protection in the form of copyright can be applied to books, photos, songs, paintings, sculptures, software and webpages — “works of authorship fixed in a tangible medium of expression.”
Terms of a copyright vary. Weatherly says it’s usually 70 years after the death of the author; however, for works of corporate authorship, it can be 95 years from publication or 120 years from creation, whichever expires first.
Seed companies might consider copyrighting photos, websites and marketing materials, Weatherly says, adding that copyright includes graphics, content and visual elements. Use of the copyright symbol serves to give notice to third parties, which may be helpful in damages.
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“You can’t go online and take a snapshot of an image and use it as your own; that can be very dangerous and costly,” Weatherly says.
As an example, Weatherly shares that a Maryland federal jury awarded a company $900,000 in damages and $300,000 in statutory damages for its case in which another company had stolen nearly two dozen copyrighted photographs from its website and marketing materials.
“It’s important to know where you procured your materials,” Weatherly says. “Don’t just grab photos off the internet.”
And last, but not least, is trade secrets: information a company keeps secret to give an advantage over competitors. These can be anything from customer lists and marketing plans to breeding methods and formulations. Trade secrets must comprise three elements. First, it must have the potential for, or some actual, economic value. Additionally, it must not generally be known to the public and it must be reasonably protected, Weatherly says.
These five IP tools are just that — specific tools to be used to accomplish specific goals or tasks. They can be used individually or collectively to achieve the desired protection.
Weatherly cautions that “protection is not just a piece of paper on a wall.”
“You need develop a mechanism to maintain that protection,” he says. “As an example, proper licensing allows for an innovation to be more broadly used and distributed. As such you must make sure the licensees comply with the agreement. If not, you can lose your rights to the innovation.”
