Protecting Plant Genetics
Breeding & Baseball
The recent World Series brought to mind how baseball is like flower breeding. Building a championship baseball franchise takes lots of time and money for scouting and acquiring great players and developing the team and techniques (the winning Cubs franchise was years in the making!). Breeding world champion flower varieties also takes lots of time and money for scouting and acquiring original germplasm and developing innovative traits.
The other essential element that allows baseball to be a great game is a well-defined set of rules that all teams follow, even as they compete with blood and sweat. Baseball’s umpires have one rule book and use transparency in settling disputes (let’s go to the video tape!). In flower breeding the rule book is based on a ‘common understanding of best practices’, a kind of ‘gentle-person’s agreement’. U.S. intellectual property law also provides a back-stop.
A recent article by intellectual property law experts James M. Weatherly and Barbara Campbell outlines the most widely used IP laws that protect American flower breeding, the Plant Variety Protection Act (PVPA) and Plant Patent Act (PPA). As Weatherly and Campbell point out, the Plant Patent Act—used to patent vegetative varieties–does not cover Essentially Derived Varieties, as the PVPA does. That leaves a gap as big as the outfield ally for vegetative flower breeders in protecting their material. Innovations in vegetative varieties have become the economic driver of the horticulture industry over the past few decades.
Some twenty years ago, Sakata began to build its winning franchise, SunPatiens®, a breakthrough flower variety. We scouted germplasm in the jungles of Indonesia and worked with the Indonesian government under the rules of the Convention on Biodiversity (CBD) to share with that country the benefits of commercializing SunPatiens®, making this an original ‘fair trade flower’. Our breeders then spent more than a decade perfecting the variety in Japan, and trialing it around the world, before finally introducing a world champion product ten years ago.
But during that time the flower breeding game has changed. As Weatherly and Campbell point out, “New [breeding] techniques mean a company can now take a recently released protected/patented variety [like SunPatiens®] induce a mutation in the new variety and get the new variety to market within a matter of months (as opposed to years with conventional breeding)”. This situation has happened recently with SunPatiens®, among other products in the market, as certain flower breeders play by this new set of rules.
“This dramatically reduces the breeder’s opportunity to participate in the benefits of the U.S. patent system”, say Weatherly and Campbell. Luther Burbank, the legendary flower breeder quoted in the article, said in support of the 1930 Plant Patent Act, “Until government made some such provision [for plant patent protection] the incentive to create work with plants was slight and independent research and breeding would be discouraged to the great detriment of horticulture”. Today, playing by their own rules and exploiting the PPA gap, some breeders are rendering the U.S. Plant Patent Act lame. Burbank would likely be disappointed in the ‘state of play’ today in horticulture and might justifiably worry about a future where innovation is discouraged.
There is stronger plant patent protection available to U.S. flower breeders, though rarely used; utility patents. Unlike the PVPA and PPA, utility patents can also prevent other breeders from using the patented genetics in their own breeding programs (common practice now). Utility patent applications are far more expensive than PVPA or PPA, which would add costs for breeders, growers and consumers. Wide application of utility patents in flower breeding could have other potential negative consequences, like concentrating innovation among fewer (larger) breeders, who alone would have the economic resources to secure the patents and defend them in court (even though this is time and money that could otherwise be directed to innovation). If widely used by major players, utility patents would be a ‘game changer’ for flower breeding. Despite these possible downsides, the next generation of SunPatiens®, coming soon and offering unique and valuable features for growers and consumers, will be protected through utility patents.
Is there a way for flower breeding to get back onto the field of fair play, with well-defined and agreed rules to enable fair competition? Weatherly and Campbell offer one idea; amend the Plant Patent Act so that it protects Essentially Derived Varieties. This would not be easy (changing federal law never is). The industry could also decide on its own set of rules, as vegetable breeders have done, recently forming the International Licensing Platform, or ILP (which Sakata has joined). The ILP provides fair and consistent rules for vegetable breeders to exchange patented varieties in mutually agreed licensing deals. In fact, the ILP has taken a page from baseball’s playbook, applying baseball arbitration in ‘ruling’ on benefit sharing proposals.
‘Rules of competition’ and plant patents may seem arcane, but they allow for fair play and enable the innovation that benefits growers and gardeners alike. Would baseball team owners, players and fans really want to invest in a World Series where each team could make up its own rules? The ‘gentle-person’s’ approach that flower breeders have till now followed in competition, supported by U.S. plant patent law, could be breaking down. This risks destroying the great value created in horticulture over the last one hundred years during which Sakata has been breeding flowers. Breeding could become as chaotic as night baseball without lights and growers and gardeners could end up with an assortment of copy-paste, me-too products. That would decidedly be to the ‘great detriment of horticulture’.
Written by David Armstrong, Sakata Seed America President & CEO