Search the archive.

Over the past several years the U.S. Supreme Court has slowly, but consistently, eroded what is considered patent-eligible, most recently with decisions on software[1] and gene[2] patents. In essence, the universe of patentable innovations has been diminished. And with it, the country’s economic potential.

Innovation is a powerful economic force and driver of both development and prosperity. Yet the Supreme Court’s recent decisions undermine the incentives to innovate in areas critical to future U.S. economic growth. Reducing the patent-eligible landscape in this way essentially eliminates any future U.S. contribution in these areas. Fundamentally it is an issue of incentives and their power to shape behavior.

The first Plant Patent Act in 1930 allowed flower breeders to patent the plants that they bred or discovered, but seeds were excluded. The majority of flowering plants first patented were roses, and even though it was during the great depression, no food plants were patented.

In 1970, the Patent Act was amended to include varieties produced from seed, and lettuce, beans, wheat, and cotton were then included. In 1995, the patents’ length of time was extended, so that now breeders can collect royalties on a plant for 20 years.

Seeds are an integral underpinning of our food system. Over the past decades we have seen a hyper consolidation of seed systems that has led to a dominant culture of seed commodification. Over time, the consolidation and commodification of seeds has eroded the resilience of our food systems, diminishing the agrobiodiversity of crops cultivated in the US at an alarming rate. Support for resilient and diversified seed systems is critical in the upcoming Farm Bill and can also be a direct pathway to support BIPOC (Black, Indigenous, People of Color) communities and climate change strategies.

The History of US Seed Breeding

Conclusion Patent trolls pose a threat to innovation. It is difficult to enact legislation that prevents the trolls from attacking these patent holders without simultaneously limiting an individual or property rights. Being a patent holder should not be impaired at the mere cost to prevent trolls from making a profit off of a patent which they have no intention of practicing. Reform limiting the actions of trolls comes from the AIA Act, SHIELD Act, PLI Act and prior 158 Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). 159 Id at 1756. 160 W. Keith Robinson, Attorney Fees and Deterring Lewis & Clark Law Review, Vol. 20:1., at 292. 161 eEltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810 (Fed. Cir. 1990). 162 Loctite Corp v. Fel-Pro, Inc., 667 F.2d 577, 584-85 (7th Cir. 1981). 163 Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 WL 1904228, at *2-3 (E.D. Tex. May 12, 2014). 39 cases which have been decided by the court. Each case plays a critical role in limiting parts of the patent litigation process which makes it more difficult for trolls to file frivolous lawsuits for a financial gain. In an effort to preserve the property rights of patent holders it is therefore critical for further reform to be implemented. The prospective pieces of legislation should be precise to ensure that their purpose is to limit trolls from flooding the patent litigation system and to continue to preserve a patent property right. Without a patent system, there is less economic incentive to invent and innovation would come to a standstill. The preservation of innovation must remain paramount when thinking of prospective avenues of reform when it comes to patents and patent trolls. Therefore, it would be impossible to remove the threat of patent trolls from the patent litigation system without jeopardizing an rights to their own innovation.

The trends post AIA Act-era have demonstrated that even with reform, it is difficult to slow down patent trolls and keep them out of the litigation system. There are various external factors such as emerging innovation by way of the infinite pockets of technology, as well as the low risk of which makes it difficult to stop these patent trolls without conservative reform. However, at what cost to an American citizen do these restrictions come? It would be unconstitutional to take away an property right for the sole purpose of stopping patent trolls. Patent trolling is a biased practice perpetuated by people who exploit legal operation for personal financial gain. The major obstacle at the legislative level is the lack of substantial examination when issuing patents. Ensuring that an application aligns with all the requirements, including paying for patent receipts, will reduce the number of patent trolls flooding the litigation system. Although prospective reform is a solution to limiting patent trolls, further research will be required to determine the efficacy of potential reform.

A firm’s ability to exercise market power also may be affected by the concentration levels in an industry. Economic theory suggests that some degree of market power leads to private R&D investment. However, too much market concentration may reduce competition and take away firms’ incentive to innovate. The cost of R&D and regulatory requirements might deter firms from entering the field, further limiting competition and new sources of innovation.

Antitrust agencies have focused more heavily on innovation concerns in the last two decades; these concerns have become an important feature in a growing number of cases across the economy and in agribusiness. However, not much empirical evidence exists on the effect of competition on research investments and innovation—and, specifically, on how many rivals are necessary to spur innovation. This issue will remain an important question for antitrust policy and economic research.

The Congress shall have the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” Article I Section 8 Clause 8 United States Constitution.

These words are embodied in the United States Code, giving rights to inventors and authors alike for their writings and discoveries. As one can appreciate, a few more stipulations, criteria and interpretations have been associated with this one clause over the past 200+ years, but it still forms the bedrock of patent and copyright protection.

As a small business, the intellectual property (IP) you create is your competitive advantage. Protecting that property early can be the difference between the success and failure of your entire enterprise. That’s why putting IP structures in place before going to market is so important. It gives you a chance to plan for growth over time—and steer the ship when you encounter rough waters. Based on my experience securing intellectual property and patents in many countries, here’s how to set yourself up for long-term success by leveraging your IP potential.

If you’re spending a lot of energy and time developing a technology, particularly in a competitive industry, you want to patent-protect your core idea early so you can then take the time to build out the mechanics of the business. For tech startups, securing a patent on your core technology doesn’t mean that technology will never change. It simply gives you a buffer between that first idea and the time you are ready to go to market. Having that breathing room can be critical to avoiding potential threats.

Small companies need every protection they can get in today’s business landscape to defend themselves from predatory Big Tech companies. Patents are vital tools for smaller companies to ensure long-term success.

As the pace of innovation increases, so too has the pace of intellectual theft and infringement. Supported by AI, which can significantly increase the pace of innovation, larger tech companies have never been more capable of stealing – and that’s the right word – the ideas of others. As Big Tech acquires ever more resources that enable them to copy and recreate the innovations of others, the need for patent protection has never been greater.

It worth mentioning, though, that degrowthers aren’t just calling for unworkable solutions; they’re also incredibly sloppy in their predictions. For example, degrowthers regularly base their assessments of unsustainable resource use on aggregate measures of material usage. Here’s a typical example:

The British intellectual Jason Hickel also uses aggregate measures of resource use by gross tonnage to support his own jeremiads against growth.

Let us suppose, for the sake of the argument, that we interpret “degrowth” as the decision to fix global GDP at its current level…Then, unless we change the distribution of income, we are condemning to permanent abject poverty some 15 percent of world population that currently earn less than $1.90 per day and some quarter of humankind who earn less than $2.50 per day…Keeping so many people in abject poverty so that the rich can continue to enjoy their current standard of living is obviously something that the proponents of degrowth would not condone.

Enforcing global degrowth would require freezing world income at about $17,000/year. That means that most people in the world would never even come close to current rich-world living standards — instead, they would at best only be able to reach the level currently enjoyed in China or Botswana. Perhaps that’s not such a horrible fate, but as Milanovic notes, this would require impoverishing most of the population of developed countries. He elaborates on this point in his new post, pulling no punches:

What is the value of property? When we speak with Marx (1991, pp 886f) about property as enclosure or with Proudhon (1994, p 13) of property as theft, the underlying assumption is that property is valuable. The scandal of property, here, lies in the redistribution of its value; the fact that it is given to someone and taken from someone else – usually without compensation. Simple as it may seem, the argument is powerful. It challenges the established economic arithmetic of property by politicizing them: someone’s profit is always someone else’s loss. Far beyond its original context of 19th-century political economy, it has been successfully mobilized, from colonialism (Bhandar, 2018) to academia (Bollier, 2002), from music (Seeger, 2004) to medicine (Dickenson, 2017), from housing (Blomley, 2008) to seed (Kloppenburg, 2004). Drawing into question the idea that property simply produces wealth, the juxtaposition of winners and losers, of included and excluded allows us to rethink and criticize the role of various forms of property in economic and public life (Loick, 2023).

Useful as it may be elsewhere, however, the application of this critique to plant patents is not straightforward. The problem begins with an apparent lack of value of the Tomatoes and Broccoli patents, as well as similar applications. As seen in Chapter 4, both plants were strikingly low-tech, almost trivial in nature. What prompted the applicants to seek property protection for something that cost relatively little? Although they were ultimately granted by the EPO, the commercial life of the Broccoli and Tomatoes patents was short and underwhelming (Braun, 2023, p 59). At the same time, it is not clear who these plants should belong to, if not the patent applicants. What is being robbed here, then, and from whom? Why would anyone go to court over these patents, and why was it not the usual suspects – farmers, activists or small breeders? The political-economic critique of property is underlaid by a strong notion of value. Not only does property have value, this value can also be distributed and measured. Moreover, it means something to both those who acquire it and those it is taken from. On an individual level, the distribution The Values of Patents 87 of property thus follows a zero-sum arithmetic: it is either mine or yours, or ours, but I can only increase my share at your expense, and vice versa. On a higher level, however, a different mathematics comes into play: here we can make claims about the unequal distribution of wealth (Piketty, 2014) or the tragedy of the anti-commons, in which we all become poorer (Heller and Eisenberg, 1998; Lametti, 2013; Aboukrat, 2021). In both cases, the weight of this critique derives from the weight of value – value that resides in the property object and can be transferred alongside it without changing. We could also think of value differently. What if it did not lie inside the (literal or metaphorical) fences of the enclosure but outside of it? One alternative location of value could be the mind of the owner – it is she who projects value onto her property, rather than deriving it from inside her possessions. For example, Pierre Bourdieu’s (1984) theory of appropriation can be read along these lines: here the educated middle class sees different values in a painting than its wealthy owner, who has lent it to a museum. For this reason, both can appropriate the same work of art and give value to it, albeit in very different ways. At the same time, popular and educated values diverge when it comes to art and culture – it takes more time and effort to properly value jazz than pop. Value, here, is subjective in the sense that it resides or at least extends from the appropriating subject. Property means something to its various owners, but it does not mean the same to them. If there is an arithmetic to it, it is that value can only be counted in the plural – values – and not be put in the same equation: ultimately, the market value of a piece of art is not commensurate with its cultural value (Karpik, 2010). But are we to believe that this is how companies think about intellectual property, investments and revenues? Do people come to appreciate the aesthetics of patents that belong to someone else? And what critique of property could we even build on this concept of value? The two theories of value mirror two competing models of property. The political-economic one resembles that of property as an object, which can be measured and transferred. The second one, which we could perhaps call cultural-economic (du Gay and Pryke, 2002; Pratt, 2009), thinks of the value of property as something that ties to subjects rather than objects, or at least detaches more readily from the latter than from the former. It bears some resemblance to the property-as-relation model: urging us to look for value in people and their social position, rather than in the things they own in various ways. Either, however, will mislead us if we seek to understand the problem with native trait patents along its lines. The value of patented plants is neither strictly ‘inside’ the plants or the patents, nor does it reside ‘outside’, in malleable valuations that take place in the minds of their owners. Just like I have criticized both ideas of property earlier in this book, I want to problematize the two contrary notions of value in this chapter. What is 88

And not just in the U.S. A civil war in America will not end in America. If the country plunges into battle, many will be vying for the loot. China, Russia, North Korea, Iran, and others will destroy whatever the war doesn’t, the American empire will become history, and a third world war, with multiple nuclear powers, will follow. There will be no winners because, to quote Machiavelli, “Wars begin when you will, but they do not end when you please.”

Is there really no alternative?

Plant Breeders’ Rights (PBR) are a form of intellectual property rights (IPR) which allow plant breeders to protect their new plant varieties. Conceptually similar to other forms of IPR’s the overall policy of objective of PBR is to stimulate investment and innovation, and to encourage the dissemination of those innovations to the public, thereby benefitting society. To be eligible to obtain Plant Breeders’ rights in Canada, a variety must be new, distinct, uniform and stable (NDUS). Once granted, the breeder receives exclusive rights (a monopoly) over the propagating material of their variety for a period of 25 years for tree or vine varieties, and 20 years for all other varieties. These exclusive rights include the right to sell, produce and reproduce, import and export propagating material of the variety as well as the right to authorize others to do the same. Once the period of protection ends, the variety is considered “public domain”, and available without restrictions.

“A country without a patent office and good patent laws is just a crab and can’t travel any way but sideways and backwards,” wrote American novelist Mark Twain. A patent formalises the right of the innovation to belong to the inventor, excluding others from producing it. As a result, intellectual property rights and patenting have been the cornerstone of safeguarding inventions.

Patents motivate and assure an inventor that they will be positioned to reap the benefits of their ideas. Our modern economy is only as good as the resourceful solutions brought about by innovation. And so, nations institute patent offices to protect intellectual property law through trademark, copyright, and patents. Inventors, individuals or corporations can seek patents on any invention as a legal safeguard in their business model.

11.5 Socio-Economic Impact Genetics and plant breeding contribute to the socio-economic development of farming communities. By improving crop yields and quality, breeding programs enhance farmers' income and livelihoods. Additionally, the development of crop varieties with traits like postharvest resilience, longer shelf life, and improved nutritional content benefits both farmers and consumers, leading to economic growth and improved nutrition [38].

12. GERMPLASM CONSERVATION AND UTILIZATION

The world has entered the sixth extinction crisis with the loss of species having a devastating impact on the biodiversity crucial to human survival.

The process of extinction can be stopped by building technology, solutions and processes that can help us secure animal DNA and begin to reverse the damage created by humans.

While many government leaders continue to declare their commitment to respect the rule of law as the foundation for peace and human rights, in practice their performance is perforated with lackluster results or outright failure. As a result, people are losing faith in democratic politics and turning to authoritarian alternatives, or simply tuning out. Now more than ever, strong guardrails such as independent judiciaries, robust civil society, and trustworthy elections are needed to stop the slide and build fairer and more accountable systems.

The rule of law recession continues

Four structural forces will shape the future of International Relations: globalization (but without liberal rules, institutions, and leadership)1; multipolarity (the end of American hegemony and wider distribution of power among states and non-states2); the strengthening of distinctive, national and subnational identities, as persistent cultural differences are accentuated by the disruptive effects of Western style globalization (what Samuel Huntington called the “non-westernization of IR”3); and secular economic stagnation, a product of longer term global decline in birth rates combined with aging populations.4 These structural forces do not determine everything. Environmental events, global health challenges, internal political developments, policy mistakes, technology breakthroughs or failures, will intersect with structure to define our future. But these four structural forces will impact the way states behave, in the capacity of great powers to manage their differences, and to act collectively to settle, rather than exploit, the inevitable shocks of the next decade.

Some of these structural forces could be managed to promote prosperity and avoid war. Multipolarity (inherently more prone to conflict than other configurations of power, given coordination problems)5 plus globalization can work in a world of prosperity, convergent values, and effective conflict management. The Congress of Vienna system achieved relative peace in Europe over a hundred-year period through informal cooperation among multiple states sharing a fear of populist revolution. It ended decisively in 1914. Contemporary neoliberal institutionalists, such as John Ikenberry, accept multipolarity as our likely future, but are confident that globalization with liberal characteristics can be sustained without American hegemony, arguing that liberal values and practices have been fully accepted by states, global institutions, and private actors as imperative for growth and political legitimacy.6 Divergent values plus multipolarity can work, though at significantly lower levels of economic growth-in an autarchic world of isolated units, a world envisioned by the advocates of decoupling, including the current American president.7 Divergent values plus globalization can be managed by hegemonic power, exemplified by the decade of the 1990s, when the Washington Consensus, imposed by American leverage exerted through the IMF and other U.S. dominated institutions, overrode national differences, but with real costs to those states undergoing “structural adjustment programs,”8 and ultimately at the cost of global growth, as states—especially in Asia—increased their savings to self insure against future financial crises.9

Herman Schwartz 21, Politics Department, University of Virginia, Charlottesville, VA, USA, 5/6/21, “Global secular stagnation and the rise of intellectual property monopoly”, Review of International Political Economy, pg 23-24, https://doi.org/10.1080/09692290.2021.1918745, kcab

6. Conclusion

Table 11.1 summarizes the strengths and weaknesses of the different IPR systems for plant related inventions. In conclusion, the technical progress, especially the increasing complexity and speed of plant innovation and the dematerialization of GRs, are emphasizing the weaknesses of the current IPR systems. While in the past PBRs and patents were rarely overlapping, now the improved understanding and reproducibility of breeding is blurring the boundaries. Consequently, the number of varieties protected by both PBRs and patents in constantly increasing. With that trend also the unresolved issues at the interface of both systems become more immanent. While the patent thickets and managing access and licensing has not yet a material impact on plant breeding several issues and questions are pressing:

• How to determine an “essential derived variety” and dependency under the PBR system if the technical progress renders the criteria of genetic similarity useless? • How to describe a variety if the phenotype and the related DUS criteria are increasingly volatile as a consequence of climate change and other environmental factors? • What are clear and meaningful criteria to describe native traits in patent applications? • How to increase quality and speed of patent examination for plant related inventions? • How to enable a market and competition for post-patent use of GM traits including access to regulatory data packages? • How to balance the interests of farmers, breeders, and technology holders when it comes to farm-saved-seed of varieties protected by both patents and PBRs? • What is an adequate scope of method claims related to general enabling methods? • How can we foster the sustainable use of plant GRs and ensure an equitable benefit sharing? • What measures can smoothen the interface between patents, PBRs, GRs, and other legislations?