New Intellectual Property Protections Available for Asexually Reproduced Plants

On December 20, President Trump signed into law the Agricultural Improvement Act of 2018, commonly known as the Farm Bill 2018. Among many other changes, the law broadens the Plant Variety Protection Act (PVPA) to include asexually reproduced plant varieties, opening additional avenues of intellectual property (IP) protection for breeders of new asexually reproduced plant varieties.

The U.S. has historically divided IP protection for new plant varieties into two distinct regimes, depending on how the plant is propagated. IP protection for asexually reproduced plant varieties (e.g., reproduced by budding or vegetative cuttings) existed only in the form of Plant Patents, which issue from the United States Patent and Trademark Office, while the PVPA offers a Plant Variety Protection (PVP) certificate through the United States Department of Agriculture for exclusive rights to multiply and market seeds of new sexually reproducible plant varieties or new tuber-propagated plant varieties.

The Agricultural Improvement Act of 2018 now extends PVP protection to plants that are asexually reproduced, which provides breeders of asexually propagated plants new avenues of intellectual property protection to consider. Because the scope of Plant Patent and PVP protections differ in certain regards, breeders can now choose to pursue one form of protection or another, depending on their needs, or can choose to pursue both forms of protection to form a stronger IP “fence” around their novel asexually reproduced plant varieties.