Kurtis R. Andrews

Brown-baggers beware: Seed Companies Appear Poised to Enforce Plant Breeders’ Rights

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Brown-baggers beware: Seed Companies Appear Poised to Enforce Plant Breeders’ Rights

On May 13, 2014, Posted by , In Blog, With No Comments

It has been almost four years since we successfully argued at the Federal Court of Appeal to limit the scope of damages available in two post-Schmeiser seed patent cases. While admitting infringement and offering to pay damages, four farmers stood up to Monsanto and proved that they only owed money attributable to Monsanto’s patented GMO technology, and not profits earned from growing the underlying soybeans. The cases set an important precedent that affected not only the farming industry, but also all patent law.

Since then, it has been eerily quiet on the seed-litigation front, with nary a whisper of litigation involving farmers in Ontario. That quiet, however, might soon be over – albeit not involving patent rights, but rather with respect to plant breeders’ rights.

Canada’s Plant Breeders’ Rights Act has been in effect since 1990. At the time it was passed, the Act was the federal government’s answer to protect plant breeders’ intellectual property [IP] rights after the Supreme Court confirmed that Pioneer Hi Bred could not patent a new soybean variety (unlike in the U.S., where such patents are available). Overseen by CFIA, the Act instituted a registry system for plant varieties, and specifically prohibits unauthorized sales of registered seed varieties for propagation purposes (note: farmers are still allowed to save their own seed for their own planting purposes). Many if not most varieties of certified seed are registered with CFIA.

Interestingly, almost 25 years after its implementation, the Plant Breeders’ Rights Act has seen almost no legal action, and has not resulted in a single case actually going to trial. It is difficult to say exactly why (especially in light of what appears to be a virtual free-for all in the seed business), but I suspect that it probably stems from evidentiary challenges combined with minimal or no available compensatory damages (due to the facts that margins on certified seed sales are minimal). In other words, it would be difficult to prove infringement under the current legislation and, even if infringement was proven, compensable losses could be near non-existent.

Recently, however, I have heard of at least one secret investigation of a seed dealer with respect to alleged ‘brown-bagging’ (sale of generically labelled common seed), and chatter at big-firm IP law offices indicating that Ag-Chem-Biotech companies, such as Monsanto and Pioneer Hi Bred, may see plant breeders’ rights as the new preferred method to protect IP rights. With many ground-breaking Biotech patents now expired, and ongoing market share losses for certified seed, it also seems timely for such companies to explore new legal avenues to protect their bottom line.

What does this mean to seed dealers and farmers? Well, if you carry on the common practice of ‘brown-bagging’, you could find yourself being sued for infringing plant breeders’ rights if that seed is a registered variety with CFIA.

Why a more aggressive approach now? Perhaps seed companies are gearing up for the passing of Bill C-18, which will, among other things, amend the Plant Breeders’ Rights Act to make it easier to sue unauthorized seed dealers who sell registered varieties.

Regardless of the reason, brown-baggers should beware. Given all the circumstances described above, a seed dealer somewhere might soon find themselves as a target to be made into an example or test case. It is important to remember that, even where a defendant is successful, the costs and stress of a lawsuit can be punishment enough. My advice is to make sure that any brown-bag sales do not involve a registered variety. If you are unsure, find out if it is a registered variety or simply do not take the chance.

Meanwhile, if you get a letter threatening you with legal action in relation to IP rights and the Plant Breeders’ Rights Act, hire a lawyer with IP experience and hope you can resolve your issues as quickly (and inexpensively) as possible.

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