Obsolescence in Intellectual Property Regimes

Abstract

In this article, we present a case study about the potential for new technology paradigms to drive intellectual property regimes towards obsolescence. The subject of the study, plant variety protection, is a little-understood intellectual property regime that mixes copyright and patent concepts. Using historical, legal, and technical sources, we analyze how a major conceptual shift in the plant sciences - a shift towards understanding plants as sets of molecular data - threatens to undermine the intellectual framework around which plant variety protection was structured. We analyze past and current attempts to conform plant variety protection to the new technological regime, and explain why those attempts are yielding mixed results. We then propose an alternative design for a plant variety protection regime based on unfair competition principles, and recommend that the unfair competition model be used as a vehicle for debate over the future course of plant variety protection. Our study has implications for other debates about the interaction between intellectual property rules and technological advance, in areas like copyright, patent, and some specific sui generis intellectual property regimes.

Keywords: plants, intellectual property, phenotype, genotype, PVPA, Plant Variety Protection Act, UPOV, research exemption, EDV, DUS

JEL Classification: K23, K33, Q16, Q17