The Evolving Landscape of IP Rights for Plant Varieties in the United States, 1930-2008

The United States was the first country in the world to explicitly offer intellectual property protection for plant varieties. Beginning in 1930, asexually reproduced plants were afforded plant patent protection, in 1970 sexually propagated plants could be awarded plant variety protection certificates, and beginning in 1985, courts confirmed that varieties of all types of plants were eligible for utility patents. From 1930 to 2008, a total of 34,340 varietal rights applications were lodged. The number of rights being sought continues to grow, with 42 percent of all the varietal rights claimed since 2000. Contrary to popular perception, most of these rights are for horticultural crops (69 percent), with ornamentals accounting for the lion’s share of the horticulture-related rights (73 percent, or 50 percent of all plant rights). Food and feed crops constitute only 24 percent of the rights sought, although just two crops (corn and soybean) made up 84 percent of the 3,719 varietal rights claimed via utility patents. The structure of these rights has changed dramatically over the years. During the 1930s when the only rights on offer were plant patents, 72 percent of the rights sought were for ornamental crops and individual innovators played a substantial role (50 percent of the rights). By 2004-2008, the annual applications for plant patents had increased in number but fallen to a 60 percent share of the total rights claimed. During this recent period, utility patents were as popular as plant variety protection certificates, and ornamentals made up a large but much reduced share of the total (52 percent). Individual innovators accounted for only 12 percent of the rights, whereas the corporate sector sought the dominant share of varietal rights (82 percent in 2004-2008). These intellectual property markets are complex, with corporations, universities and other agencies seeking different types of rights for different crops.