Different kinds of patents cover different kinds of inventions: utility patents for useful articles, design patents for industrial designs, and plant patents for plant varieties. But in recent years, companies have increasingly been getting utility patents on plant varieties created through millennia-old methods of crop selection and breeding—for example, this patent on a particular lettuce variety. The differences between different types of patents matter: utility patents give their owners broader rights of longer duration while giving technology users (in this context, farmers) fewer protections than plant variety patents. The rising use of utility patents to claim plant varieties may produce more revenue for the USPTO and patent owners, but small to mid-sized farmers and consumers in the U.S. pay the price.

Many of the entities acquiring utility patents on plant varieties are multinational corporations with deep pockets that can (and do) use their patents to shut down or impose costs on small to mid-sized farmers, who cannot afford to acquire massive patent portfolios or defend against them. The result is more concentration of power in the agriculture sector, more expensive agriculture inputs and products, and less variety and choice for consumers. Because many of the corporations acquiring these patents are based outside the U.S., the extra revenue and tax income they generate flow outside the U.S. too.

The U.S. Department of Agriculture recently requested comments on anti-competitive market structures and practices in markets for agricultural inputs and products. PIPLI has submitted a letter urging the USDA to take action to ensure the patent system promotes rather than deters competition, growth, and innovation in the agriculture sector. Among other steps, we recommend the USDA take an active role in developing training materials for patent examiners reviewing agriculture-related patent applications, help farmers lacking resources or familiarity with the patent system to turn their work into prior art references, and study the impact of utility patents covering agricultural products and methods on the agriculture sector in the U.S.

We are glad the USDA is working to protect competition and support small farmers. Given the patent system’s growing impact on the agriculture sector, we hope that work will include the patent system—and improve it.