The small print has a big impact in new Farm Bill

Several rows of unreleased varieties in various stages of screening grow next to the mother tree of the WA 38 apple (in the bottom right corner of the block) in April 2018 at Washington State University’s research orchard near Wenatchee, Washington. For WSU’s next apple — or cherry — the university has more legal avenues for intellectual property protection, thanks to a small change in language in the new Farm Bill signed by President Donald Trump in December. (TJ Mullinax/Good Fruit Grower)

The new U.S. Farm Bill, passed in December and signed by President Donald Trump, contains a short and obscure language-change that could open more doors for protecting new varieties of tree fruit.

Even experts in plant intellectual property rights were caught off guard and unsure about the ramifications.

“This may look like a small change, but it will be pretty significant in the plant breeding world,” said Michelle Bos, an attorney from Zillah, Washington, with a history of filing plant patents.

Albert Tsui, a patent attorney and business development specialist at Washington State University, and Lynnell Brandt, president of two tree fruit variety management companies, were similarly surprised.

However, if their prognostications are correct, the few arcane changes in legalese contained in Section 10108 of H.R. 2 — the Farm Bill — would usher in some critical shifts in the way developers of new fruit varieties go about protecting their intellectual property.

The legalese
The change expands the purview of the Plant Variety Protection Act, which secures intellectual property regarding plants, to include “asexually reproduced” varieties. That means new apples, cherries or other tree fruit propagated by grafting would qualify.

Previously, the Plant Variety Protection Act, administered by the U.S. Department of Agriculture, only applied to plants propagated by seeds or tubers, such as wheat or potatoes.

Meanwhile, asexually propagated varieties — including Washington State University’s new apple, WA 38, to be sold under the brand name Cosmic Crisp — used a U.S. plant patent administered by the U.S. Patent and Trademark Office under the Department of Commerce, which afforded the same protections as those for everything from cars to computer programs to yo-yos.

The change brings the U.S. system of protecting fruit varieties more into harmony with the rest of the world, which follows the regulations of the International Union for the Protection of New Varieties of Plants, typically called UPOV.

In fact, an international breeders’ rights protection organization asked the U.S. two years ago to consider the change, according to minutes of the Plant Variety Protection advisory board, a nationwide group of farmers, industry association officials and researchers appointed by the Secretary of Agriculture.

Possible effects

For one thing, plant variety protections on trees last longer than U.S. plant patents, 25 years to 20 years, respectively. In the European Union, tree variety protections, sometimes called plant breeders’ rights, last 30 years.

Also, the new laws could allow breeders to “double cover” the fruit trees they invent, under both traditional plant patents and the new section of the Plant Variety Protection Act, said Tsui, one of those advisory board members. He plans to recommend Washington State University administrators do just that the next time one of the university’s breeders is ready to release a new variety, perhaps a new apple to follow WA 38, or a sweet cherry.

Tsui now has two avenues to enforce WSU’s intellectual property, instead of one.

“That’s sort of the beauty of this new law,” he said.

The cost to seek plant variety protection is about $5,100. Plant patents typically cost less — around $2,000, Tsui said.

However, Tsui does not suspect varieties patented before the 2018 Farm Bill, such as WA 38, would be able to seek plant variety protection now, under the new law.

The new law also could allow for longer grace periods to protect a variety after it hits the stores, giving breeders more time to research markets, said Brandt, president of Proprietary Variety Management, the Yakima, Washington, company contracted by WSU to commercialize WA 38 under the brand name Cosmic Crisp.

Breeders have six years to apply for plant variety protection after their variety is sold anywhere in the world, but only one year to apply for a U.S. plant patent.

“That’s a very big deal,” Brandt said. Brandt also owns an international nursery company: Associated International Group of Nurseries.

This grace period came into play when Brandt licensed WA 38 to international growers in 2015. The variety, owned by WSU, gives growers in Washington state a 10-year head start over any other grower in North America but not the whole world.

The quarantine period required by countries before they welcome a new variety often takes several years. To prevent unlicensed wood from escaping into an international market he can’t police, Brandt has licensed production companies throughout the world. Now, with oversight, it’s on them.

The new Farm Bill also might make it easier for the developers of new fruit varieties to claim ownership of a mutation that pops up on a limb, accidentally, that is under plant variety protection, Brandt said.

Under a U.S. plant patent, the right to patent a chance sport, mutation and, essentially, derived variety basically falls to whomever happens to stumble across it in the orchard, if they can prove it’s different enough from the mother tree. The bar to do that would be much higher under the Plant Variety Protection Act, Brandt said.

Practical challenges

Even without the uncertainty of the legal ramifications, the fruit industry has practical hurdles to overcome before it can put the new variety protection laws to use, Brandt said.

The federal government would first need to establish a repository for a representative of each new variety and a mechanism for evaluating whether a new plant is distinct, uniform and stable. Both of those are required for a variety protection, but not for a U.S. plant patent.

Glen Bradford, a California fruit breeder and co-owner of BQ Genetics in Le Grand, California, plans to do his homework, too, but has no plans to change.

He doesn’t call the patent system easy but has grown comfortable with it and uses it to file 10 or 12 patents a year on cherries and stone fruit. He simply uses his most recently approved application as a template for the next one in line. He doesn’t even hire attorneys.

“The system’s working fairly good for us right now,” he said. •

—by Ross Courtney

Related: Highlights in the new Farm Bill