By Luca Schirru
On October 8, 2024, the USDA released a series of documents providing information on research activities involving patent seeds, which aimed at guiding researchers and other stakeholders through the intricate intersections between intellectual property (IP) and public research goals. The initiatives address three key scenarios: (i) recommendations to the USPTO for increasing research access to germplasm; (ii) guidance directed towards the USDA researchers on research activities using utility patented germplasm and; (iii) research access to germplasm developed with federal funds.
The recommendations to the USPTO for Increasing Research Access to Germplasm focus on achieving a “balance between incentivizing inventors and promoting innovation for the public benefit”. The recommendations seek to clarify the required level of detail of the information that must be disclosed by the inventors to ensure “that technology already in the public domain remains available to the public”.
Acknowledging the uncertainty faced by some researchers in determining what is actually covered by a patent, the USDA, through its guidance on Research Activities Using Utility Patented Germplasm, advised plant researchers to consult with the agency legal counsel and affirmed their ability to “share the information they gather and conclusions they reach with others, including researchers, breeders, farmers, and consumers”.
The guidance on Research Access to Germplasm Developed with Federal Funds highlights the USDA’s commitment to ensure that germplasm developed with its funding is “made available to the research community”. It advises funding recipients to carefully design their IP strategies to align with this goal, since “access to germplasm is a prerequisite for catalyzing scientific advancements in plant breeding”.
These initiatives built upon the recommendations made in the report “More and Better Choices for Farmers: Promoting Fair Competition and Innovation in Seeds and Other Agricultural Inputs”, prepared by the US Department of Agriculture Agricultural Marketing Service in response to President Biden’s Executive Order Number 14036: “Promoting Competition in America’s Economy”, and released in March 2023. This Report is the result of a collaboration between the USDA, USPTO, and other Federal Partners, and addresses “certain longstanding challenges associated with promoting competition and protecting intellectual property in relation to agriculture”. The report’s findings were informed by the input of multiple stakeholders, as is the case of farmers, scientists, patent experts, trade associations and others.
