Abstract

http://ssrn.com/abstract=290616
 
 

Citations (1)



 
 

Footnotes (11)



 


 



Designing An Optimal Intellectual Property System for Plants: A U.S. Supreme Court Debate


Jay P. Kesan


University of Illinois College of Law

Mark D. Janis


Indiana University Maurer School of Law


Nature Biotechnology, Vol. 19, Pp. 981-983, Oct. 2001

Abstract:     
Historically, intellectual property systems have facilitated the commercialization of plant innovation by offering specialized protection regimes for specialized circumstances. In 1930, the U.S. Congress created a "plant patent" regime designed specifically to provide rights against unauthorized asexual propagation, a serious problem in the nursery industry. In 1970, Congress created a "plant variety protection" (PVP) regime that is tailored to provide limited rights against duplication of protected varieties via seeds, a matter of obvious importance in the commercialization of crop plants. At the time, no one perceived any conflict between the specialized regimes and the general "utility" patent system. However, today, the emergence of plant biotechnology, and continued advances in plant breeding techniques, have prompted new questions about the reach of the utility patent regime and its compatibility with plant-specific regimes. In October 2001, the U.S. Supreme Court heard arguments in J.E.M. Ag Supply v. Pioneer Hi-Bred, in which the Court considered whether plant innovation can be protected -- like all other innovation -- under the general "utility" patent system, or whether plant innovation is to be consigned exclusively to specialized regimes. The Court's decision is likely to have major ramifications for the future application of intellectual property regimes to plant research.

The decision is likely to have significant practical implications as well. Since 1985, the U.S. Patent and Trademark Office (PTO) has granted hundreds of utility patents on all aspects of innovation relating to plant science: on plants themselves, seeds, breeding methods, plant biotechnology. The Court's J.E.M. decision could impact the validity of many of these existing utility patents on plants.

In this article, we explain the issues that the Court will be asked to consider, assess the Court's options in resolving the case, and propose a resolution that best balances private rights and public access to the results of plant research. Our proposal calls for the Court to preserve the current state of the law, in which plants fall among the categories of subject matter that are eligible for utility patent protection. The Court should decline the invitation to rework the nation's intellectual property policy as applied to plants, leaving the job of comprehensive policy reformulation - if it is needed at all - to Congress.

Number of Pages in PDF File: 5

Accepted Paper Series





Download This Paper

Date posted: November 20, 2001  

Suggested Citation

Kesan, Jay P. and Janis, Mark D., Designing An Optimal Intellectual Property System for Plants: A U.S. Supreme Court Debate. Nature Biotechnology, Vol. 19, Pp. 981-983, Oct. 2001. Available at SSRN: http://ssrn.com/abstract=290616 or http://dx.doi.org/10.2139/ssrn.290616

Contact Information

Jay P. Kesan
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-333-7887 (Phone)
217-244-1478 (Fax)
HOME PAGE: http://www.jaykesan.com
Mark David Janis (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,417
Downloads: 335
Download Rank: 50,856
Citations:  1
Footnotes:  11

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.344 seconds