2018 Farm Act has important IP Implications

December 14, 2018
Post by Heidi S. Nebel

At long last, the 2018 Farm bill has been approved by Congress and forwarded to the President for signature. As I blogged earlier, the bill has important Intellectual Property Implications. The first is that it adds PVP protection for asexually reproduced plants. The  addition will allow asexually reproduced plants, which are now protectable under the US Plant Patent statute 35 U.S.C. Section 161, (which includes a single claim to the variety as shown and described in the application) to now include coverage for "essentially derived" varieties. While this type of coverage is potentially  available in the more lengthy to prosecute and more expensive utility patent regime, breeders of ornamentals and other typically asexually reproduced varieties now have more options for protecting the "fruits" of their labor.

Per my work on the National PVP Advisory Board, the USDA has been anticipating this addition and indicates that the current staffing is adequate to support these additional filings. It should not be long before the process is up and running at the USDA.

The Act also legalizes Cannabis (hemp), which has 0.3% or less of THC. This also has important IP implications, allowing hemp varieties to be PVP'd and also paving the way for deposit of hemp seeds at the ATCC to enable United States Utility Patent application to hemp varieties. Previously, deposit of seed to enable a patent appclaition on a variety had to be made in other Budapest treaty member depositories. 

Heidi S. Nebel is the Managing Member and Chair of the Biotechnology & Chemical Patent Practice Group. She has been assisting clients with intellectual property matters for over 25 years. For more information, please visit our MVS website or call our office at (515) 288-3667.

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Comments (1)
Audrey commented on 17-Dec-2018 05:57 AM
Isn’t UPOV’s position that an EDV is a variety that plagiarizes a protected variety? I fail to see the benefit of PVP protection for asexually reproduced varieties.
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