Thursday, 15 March 2012

Protection for Sexually Reproduced Plants

Many countries provide protection to inventions in the field of agriculture/horticulture either through patents or by an effective sui generis system (such as the Plant Variety Act of India, 2001), or both. Under the Indian Patent Act, sections 3(h) and 3 (j) disclose what can be construed as “patentable” for inventions related to plants.

The recently filed opposition to Monsanto patent on Indian melons at the European Patent Office triggered another debate on whether living organisms and their products are patentable. In the Monsanto patent, the process for melon breeding has been excluded from the scope of the patent; however, the patent office granted protection to the “plant” per se as well as plant products such as seeds, fruits etc. The process of breeding has been excluded because European Union do not provided patent protection for conventional breeding. 

The history sheet of protection for living beings, including plant varieties and their products, is far from being clean. There have been many interesting cases where the courts have tried to understand the intent of the congress as well as interpret the sections in patent laws targeted towards the protection of living beings as inventions. Diamond v. Chakrabarty (In the Supreme court of United States) proved to be a landmark case that went on to be cited in many subsequent patent litigation cases. Another interesting patent litigation case was contested between Farm Advantage v. Pioneer Hi-Bred in the year 2001. 

Farm Advantage v. Pioneer Hi-Bred: The main areas of contention in the case were patentability of sexually reproduced seeds by breeding under 35 USC 101 as well as determining the intent of the congress in providing dual protection for the same plant products under plant varieties protection act and utility patents.

Background: This was the first case that addressed the issue of whether patent protection could be sought for sexually reproduced plants. Pioneer was granted 17 utility patents relating to inbred and hybrid corn seed products. The seeds were sold under a limited license that allowed the purchaser to use the seeds for production of single crop (emphasis added) and denied the purchaser from using the seeds for propagation or seed multiplication or for the production or development of a hybrid or different seed variety. However, Farm Advantage sold the seeds to certain farmers, who in turn planted the seeds in their fields. When Pioneer filed a lawsuit alleging infringement of its utility patents, Farm Advantage filed a counter-claim arguing that sexually reproducing plants are not patentable and the 17 patents were invalid.

Outcome: The supreme court ruled in favor of Pioneer clearing certain bit of smoke that hovered on whether sexually reproduced plants obtained through breeding were patentable or not.


  1. In some countries (including the United States, Australia and Europe) plants can be covered by plant patent process claims provided that the patent applications are able to meet all of the necessary standards and requirements that exist in that country for patentability.

  2. Thank you for sharing the information Cathy. You are right in saying that plants can be covered by plant process claims provided the plants meet certain standards and requirements. Even in India, we have the plant patents to safeguard the rights of farmers and agriculturists.