Obsolescence in Intellectual Property Regimes

66 Pages Posted: 24 Apr 2006

See all articles by Mark D. Janis

Mark D. Janis

Indiana University Maurer School of Law

Stephen Smith

Pioneer Hi-Bred International, Inc.

Date Written: April 2006


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

Suggested Citation

Janis, Mark David and Smith, Stephen, Obsolescence in Intellectual Property Regimes (April 2006). U Iowa Legal Studies Research Paper No. 05-48, Available at SSRN: https://ssrn.com/abstract=897728 or http://dx.doi.org/10.2139/ssrn.897728

Mark David Janis (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Stephen Smith

Pioneer Hi-Bred International, Inc. ( email )

7300 NW 62nd Avenue
Johnston, IA 50131
United States
515-270-3353 (Phone)

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