Utility Patents Applied to Plants
What Is a Patent? (from the USPTO web site):
"A patent for an invention is the grant of a property right to the inventor,
issued by the United States Patent and Trademark Office. Generally, the term
of a new patent is 20 years from the date on which the application for the
patent was filed in the United States
The right conferred by the patent grant is, in the language of the statute
and of the grant itself, “the right to exclude others from making, using,
offering for sale, or selling” the invention in the United States or “importing” the
invention into the United States. Once
a patent is issued, the patentee must enforce the patent without aid of the
USPTO.
Utility patents may be granted to anyone who invents or discovers
any new and useful process, machine, article of manufacture, or composition
of matter, or any new and useful improvement thereof..."
For more information about utility patents, see:
Patenting Living Organisms
Three major pieces of legislation were instrumental in making it possible
to obtain utility patents on living organisms, including plants (see: Patenting
Life–A Brief
History and BIO
Primer: Can living things be patented? for concise overviews):
- J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc.
A case decided before the United States Supreme Court in 2001.
In this case the court decided that utility patents could be issued for plants,
even though some protections on plants are already available through the
Plant Patent Act and the Plant Variety Protection Act.
Brief Summary.
Some Resources discussing the J.E.M. Case:
More about Chakrabarty V. Diamond:
More about Ex parte Hibberd:
"Ex
parte Hibberd: Another Landmark Decision," Nature
Biotechnology 3:1059-1060, Dec. 1, 1985.
Utility Patents Applied to Plants
Plant Genetic
Engineering and Intellectual Property Protection
Brian D. Wright, Professor of Agricultural and Resource Economics, University
of California, Berkeley
Excerpt:
"It is important to note that plant patents and PVPCs prevent only
unlawful proliferation of the variety; they do not prevent the use of protected
plant materials
for breeding purposes. In contrast, the more broad-ranging utility patents
not only
prevent seed increase via reproduction of the same variety, they also protect
breeders
against unauthorized use of protected varieties for breeding and research purposes.'
Transgenic
Crops, An Introduction and Resource Guide, Important landmarks in U.S. patent
law:
Excerpt:
"A
utility patent is often sought for products related to genetic engineering
because the utility patent can apply to the method used to engineer a plant,
the genetic sequences that are inserted, and the plant that results. The
Terminator patent is an example of a utility patent. It claims patent protection
for the method used to make Terminator plants as well as the seeds and plants
that are made. There is no exemption for farmers or plant breeders to use
materials protected by a utility patent."
Librarian Contact Information
|
