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By Richard Gearhart
Founding Partner

Plant breeders may protect a new plant variety with a plant patent or through a plant variety protection. In the United States genetically modified plants may also be protected via utility patents.

By: Susanne Somersalo

Patenting living organisms is a controversial topic. A usually heard comment is that no one should have monopoly on a living organism. But let’s stop for a moment to think how the seedless sweet compact water melon that you bought from the grocery shop was made.

The water melon originated in southern Africa. The ancient Egyptians began to cultivate water melon. By early 14th hundred watermelon was also known in Europe. The more popular watermelon growing became the more breeding was needed. The size of the melons was bred to be larger. In 1950’s the main goal for breeding was disease resistance. Later quality features like sweetness, vitamin content and seedlessness became of interest.

The traditional method for breeding is simply selecting best individuals, crossing them and growing the next generation with a hope that some of the descendants would bear the qualities of interest. Traditional breeding is extremely labor intense and slow.

In 1950’s a number of new methods to accelerate breeding were invented. One method was to induce mutations in the plant genome purposefully by X-rays, by a chemical called cholcicine or by cultivation of tissue cultures. By increasing the number of mutations, the breeders have a larger pool from which they can select interesting material for further breeding.

Seedless watermelon originates from such mutation experiments. Breeders were able to artificially induce a mutation where a melon had a triple genome instead of the normal double genome. Using these triploid melons as breeding material the breeders were able to breed essentially seedless watermelon.

Further methods to breed the seedless melon may include isolating protoplasts (cells without cell walls) from two different varieties and making a protoplast fusion. Cultivating the fusion product in cell cultures would give tiny sprouts that then may be grown to plants that hopefully have new and desired characters for further breeding.

However the seedless sweet compact watermelon is made, it is clear that it took a long time, lot of effort and money and inventive ideas. So should we say that the new melon is not protectable? Sure it is a living organism, but it would not exist without the efforts of the breeders.

In the United States, a breeder can protect a new and distinct plant variety that is asexually reproduced with a plant patent. A plant patent is valid of 20 years, similarly as a utility patent and it gives the owner a right to exclude others from asexually reproducing, selling or using the plant. Plant patents can be granted for macro fungi and algae also.

A plant patent provides protection for the United States market only. There is no equivalent in other countries.

A plant patent is not applicable for seed produced or tuber-propagated plant varieties. The breeder can get protection to these through Plant Variety Protection (PVP) administered by the U.S. Department of Agriculture (USDA). United States is a member in International Union for Protection of New Plant Varieties (UPOV), which allows claim of priority for PVP in any member country.

Aside from plant patents and plant variety protection, there is a third possible way to protect plant material in the United States: USPTO grants patents for genetically modified plants and seeds.

In addition to patents, a plant breeder can also get protection via seed sales and growers’ contracts limiting the use of the seeds. Post sale restrictions may also be printed on bag tags and when the buyer opens the bag he agrees to use the seeds for purposes allowed in the bag tag.

About the Author
Richard Gearhart, Esq. is the founder of Gearhart Law and the host of a weekly radio show for entrepreneurs called “Passage to Profit”. He has built a firm with an international presence that helps entrepreneurs from around the world with their patent, trademark and copyright needs. Richard commands a breadth of experience that comes from nearly 30 years of practice in the writing and prosecution of hundreds of patents, and in all aspects of Intellectual Property law. In 2022, Richard was recognized by ROI New Jersey as a 2022 ROI Influencer in the Law List category for being one of the best of the best in New Jersey for intellectual property law. Gearhart Law emerged from Richard’s passion for entrepreneurship and startups and his belief that entrepreneurship grows the economy and creates jobs. When we started Gearhart Law, our goal was to help and support the new business ventures of 500 entrepreneurs and inventors. After 12 years, the firm has far surpassed this goal; today, we look forward to helping even more inventors and entrepreneurs get off to a great start and reach their own goals.