A Breed Apart - Crop inventors are seeking to protect their work, even if they don’t use GMOs

by Morrison & Foerster LLP
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When international seed supplier Enza Zaden bred a delicious and juicy new tomato in the 1990s, the world was introduced to the now famous Campari. The globe-shaped vegetable soon became a supermarket staple, but the Dutch company did not patent its creation. “At the time, IP protection for vegetable varieties was not as common as it is today,” observes Katherine Dutmer, manager of legal affairs and registration for Enza Zaden.

Ensuring legal protection for its new plant varieties has since become an important goal of major suppliers like Enza Zaden, a $233 million family-owned supplier of seeds for more than a dozen crops for commercial farmers around the world. The effort has taken on added significance as the breeding process increasingly involves expensive technology.

Crop breeders mate plants for qualities such as taste, yield, and resistance to viruses and other diseases. “Plant breeders are always looking to develop varieties that are resistant to pathogens, which can otherwise wipe out entire fields,” says Michael Ward, co-chair of Morrison & Foerster’s Intellectual Property Practice.

While the genes of bred offspring differ from those of their parents, all are natural to the species. “This is different from genetically modified organisms [GMOs], which contain genes that don’t naturally occur there,” explains Jeroen Rouppe van der Voort, Enza Zaden’s manager of biotechnology research and applications. With GMOs, for example, bacterial genes might be inserted into produce to make it resistant to certain insects. But even traditional breeders such as Enza Zaden that don’t use GMOs are taking advantage of the sequencing of genetic technology.

“Developments in DNA sequencing have resulted in complete plant genomes over the last four years, allowing breeders to pinpoint important traits at the sequence level and steer our process much more effectively,” he says.

New tomato varietals take some nine years to bring to market, and cauliflower up to 17. So using genetic markers to view a plant’s characteristics—rather than waiting until it is fully grown—can save a lot of time. But the expense of DNA sequencing makes acquiring IP protection for resulting seed products more important, Dutmer says.

Laws protecting produce vary across the world, with patent protection offered in the U.S., Japan, and Australia, explains Ward. To protect their new variety in the U.S., for example, breeders can obtain “utility patents” from the U.S. PTO, as Enza Zaden did recently for four lettuce hybrids. Companies can also obtain a “plant variety protection certificate” (PVP) through the U.S. Department of Agriculture. In other countries, including in Europe, protection generally stems from laws modeled on the International Convention for the Protection of New Varieties of Plants. These laws protect seed sales but give fellow breeders the right to use plants to create new varieties. Enza Zaden would like to introduce this exemption in a limited form, so that breeders would first be required to obtain a license from the patent owner for commercial exploitation of products containing these elements.

Breeders have also started to use trademarks in connection with their creations. “Breeders are a relatively late arrival to the benefits of trademarks in promoting consumer following for a product,” says Rosemary Tarlton, a partner and trademark and plant variety name expert at Morrison & Foerster. One example is the Minneiska apple, the result of a decade-long breeding effort. The apple’s originator, the University of Minnesota, could simply have called it a Minneiska, Tarlton points out. Instead, they devised a brand name, SweeTango, and a trademarked logo to accompany the varietal name “Minneiska” wherever the apple or trees are promoted. “Years from now, when their patent or PVP rights expire, other companies will be able to breed and sell this type of apple and call it a Minneiska,” Tarlton says. “But they won’t be able to call it a SweeTango.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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