Agricultural and Plant Breeding Industry

• Author: Katherine Koenig
• Pages: 533-577

533

I. Introduction

There are several ways of protecting intellectual property (IP) in

plants in the United States, all of which being capable of gener-

ating revenue, such as through licensing and sale. The patent

family of intellectual property in the United States, as distin-

guished from trademark, copyright, and other forms of protection,

includes plant patents, plant variety protection certicates, and

utility patents for plants. Internationally, a plant may be pro-

tected under plant breeders’ rights (PBRs). A brand name under

which a variety is marketed also may be protected by trademark

law. Additional means for protecting plant varieties include

licensing, trade secrets, and contracts (such as bag tags, material

transfer agreements [MTAs], and technology use agreements).

This chapter primarily discusses plant patents, plant variety pro-

tection certicates, utility patents for plants, and trademarks.

Although less frequently encountered than other IP types,

intellectual property protection for plants and plant technologies

Chapter

Agricultural and Plant

Breeding Industry

By Katherine Koenig*

13

* I would like to thank my parents for encouraging me to pursue an education in

agriculture and my husband for indulging, and joining, me in my continued interest

in plants and nature.

534 CHAPTER 13

can represent a signicant share of portfolio value, and it brings

its own set of problems for the due diligence effort.

II. Background on Plant Biology

Before addressing due diligence considerations and the various

means for legal protection of these types of IP assets, let’s rst

discuss the basics: the biology of plants.

A. What Is a Plant?

We are all generally familiar with plants, and nearly everyone

can identify a plant when they see one. However, the scientic

denition of a plant is a multicellular eukaryote in the kingdom

Plantae.1

Multicellular means that the plant organism includes more

than one cell, unlike single-cellular organisms (prokaryotes)

such as bacteria. Although eukaryotes typically are multicellular

organisms, the term multicellular is useful here because there

are a few single-cellular eukaryotic organisms. Yeasts, for exam-

ple, have only one cell, but they also have other characteristics

that distinguish them from prokaryotes and push them into the

eukaryotic classication. (Though not important for this discus-

sion, these characteristics include membrane-bound organelles

and the presence of mitochondria and chloroplasts and a cell

wall.) In addition to the typical eukaryotic characteristics, plant

cells also include chloroplasts and cell walls.

Most plants convert light energy, such as sunlight, into chem-

ical energy through photosynthesis. This process is carried out

within chloroplasts, wherein, generally speaking, carbon dioxide

and water are converted by light energy into sugar, oxygen, and

the energy compounds nicotinamide adenine dinucleotide phos-

phate (NADPH) and adenosine triphosphate (ATP). Interestingly,

1. Wikipedia, Plant, https://en.wikipedia.org/wiki/Plant.

Background on P lant Biology 535

it is believed that chloroplasts were originally cyanobacteria that

were incorporated into early eukaryotic cells in a symbiotic rela-

tionship to create the rst plant cells.2

B. Plant Reproduction

Plants can reproduce sexually and/or asexually (or be propa-

gated sexually or asexually), depending on the type of plant. As

discussed later, this determines the legal protections available

for new plants. Sexual reproduction involves the combination

of genes from different parents, which results in genetic diver-

sity in offspring, whereas asexual reproduction typically results

in offspring that are genetically identical clones of the parent.

Sexual reproduction involves the combination of male and female

gametes, each of which have half the total number of chromo-

somes of normal cells. When the gametes combine, the result is a

single-celled zygote that contains the genetic material from both

parents. In owering plants, the male gametes are within the pol-

len grains (produced in the anthers) and the female gametes are

within the ovules of the carpel (which also includes the stigma,

style, and ovary). A fruit containing one or more seeds develops

as the result of the combination.

This process is different in nonowering plants, such as coni-

fers, ferns, fungi, algae, and lichens. Further, some plants can

self-pollinate. In autogamous plants, this means that fertiliza-

tion occurs between the male and female components of the same

ower. In geitonogamous plants, this means that fertilization

occurs between male and female components on the same plant,

but not in the same ower. For most owering plants, this occurs

with the help of pollen vectors, such as wind, animals, or insects,

although some owering plants can accomplish self-pollination

without this help.3

2. Id.

3. Wikipedia, Self-pollination, https://en.wikipedia.org/wiki/Self-pollination.