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The Parable of the Seeds: Interpreting the Plant Variety Protection Act in Furtherance of Innovation Policy

James Ming Chen

Michigan State University - College of Law

Notre Dame Law Review, Vol. 81, No. 4, 2006
Minnesota Legal Studies Research Paper

Among drivers of evolution, two forces tower above all others. One of them is food. The other is sex. The seed is both. Information embedded in seed is amenable to various forms of proprietary protection. In the abstract, the Plant Variety Protection Act (PVPA) provides an attractive alternative to utility patents on plants and to the protection of hybrid crops as trade secrets. In practice, the PVPA has failed to become the preeminent form of intellectual property in plants. This article explores some of the reasons for this apparent statutory shortcoming.

First, this article outlines the case for a substantive canon of statutory interpretation derived from the Constitution's requirement that federal intellectual property laws advance the Progress of Science and useful Arts. Second, this article applies this canon to the PVPA. In particular, it addresses the PVPA's controversial crop and research exemptions. Third, this article discusses the statutory requirement that applicants for plant variety protection deposit reproductive material in a public repository. Fourth, this article assesses the practice of seed-wrap licensing as a contractual response to reproductive breeding, brown-bag sales, and other activities putatively conducted under the PVPA's crop and research exemptions. This article concludes by defending its constitutionally informed approach to interpreting the PVPA, which appears to be a rare instance in the annals of contemporary intellectual property law in which proprietary protection is not excessive, but rather insufficiently robust.

Number of Pages in PDF File: 62

Keywords: plants, intellectual property, statutory interpretation, PVPA, Plant Variety Protection Act, patent, trade secret, UPOV, research exemption, reverse engineering, hybrid crops, GURTs

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Date posted: August 19, 2005 ; Last revised: May 15, 2014

Suggested Citation

Chen, James Ming, The Parable of the Seeds: Interpreting the Plant Variety Protection Act in Furtherance of Innovation Policy. Notre Dame Law Review, Vol. 81, No. 4, 2006; Minnesota Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=784189

Contact Information

James Ming Chen (Contact Author)
Michigan State University - College of Law ( email )
318 Law College Building
East Lansing, MI 48824-1300
United States
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