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New Guide from Vermont Law School Helps Plant Breeders Preserve Biodiversity

In partnership with Rural Advancement Foundation International-USA(RAFI-USA), Vermont Law School’s Center for Agriculture and Food Systems(CAFS) has released a new free resource for plant breeders entitled A Breed Apart: The Plant Breeder’s Guide to Preventing Patents through Defensive PublicationThe guide outlines practices for plant breeders to keep genetic resources in the public domain. 

“Biodiversity in crop species is essential to the future of farming, especially as climate change alters growing conditions,” said Emily Spiegel, co-author and Vermont Law School assistant professor. “But agricultural biodiversity has declined drastically during the past century.” 

That loss has coincided with the consolidation of seed companies. Just four firms now control more than 60 percent of global seed sales. And these companies have been patenting the crops they develop so that they cannot be used without permission or payment. 

“Patents on crop genetics constrain farmers and plant breeders alike,” says Cydnee Bence, Vermont Law School student and co-author of the guide. “Farmers have fewer options for planting, while breeders lose access to the genetic diversity they need. What’s more, many farmers and plant breeders fear legal action by companies if they inadvertently use plant varieties that are too similar to patented ones.” 

To push back against these trends, some plant breeders are seeking ways to ensure the genetic traits they develop can never be locked into patents. 

One method is to create a printed publication that establishes a plant variety as “prior art,” rendering it ineligible for a patent in the future. While documents like these—called “defensive publications”—are common in other industries such as software, the guide’s authors argue that plant breeders interested in preserving biodiversity should be using them, too.   

Defensive publication keeps genetic resources available without use restrictions or liability for infringement, and for a fraction of the cost of pursuing a patent. For plant breeders, the process can make genetic material more widely available for research. Ultimately, it could also make seeds more affordable and accessible for farmers. 

“This guide is essential for anyone in the plant world trying to prevent plant genetic material from being co-opted—or simply trying to navigate the laws and regulations surrounding intellectual property,” said James Myers, a plant breeder at Oregon State University. “The authors take a complex, arcane subject and distill it into an easy-to-follow publication. It’s a thorough review of contemporary intellectual property protection and the issues at the forefront in plant breeding right now.”

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.