Historical Development of Intellectual Property in Soybeans

Germplasm for a new world

In the historical context of plant breeding, legal protection, in the form of statutory- based IP for innovations in plant germplasm, is a relatively new phenomenon. Early farmers engaged in unsystematic plant breeding by exploiting chance mutations and selecting or trading seed from plants with the most desirable traits (Kloppenburg, 1988, p. 2; Fernandez-Cornejo, 2004, p. 2). Although the actual seeds were subject to ownership as personal property, the farmer-discoverer of the mutation did not regard himself as the owner of the new variety’s germplasm. The agricultural community considered germplasm a natural creation and part of the public domain.

In the 1830s, the US Patent and Trademark Office (PTO) established a federal seed repository and, in the 1840s, through its Division of Agriculture, began the free distribution of seeds to the nation’s farmers (Aoki, 2003, pp. 264–265). Under the direction of the Treasury Department, Consular and Navy officials stationed overseas collected many of the new varieties distributed to farmers (Kloppenburg, 1988, p. 2; Aoki, 2003, pp. 264–65). Through trial, error and simple selection techniques, individual farmers improved crop varieties using the free seeds (Aoki, 2003, p. 266). In 1862, Congress created the US Department of Agriculture (USDA) with the express mission, inter alia , ‘to procure, propagate, and distribute among the people new and valuable seeds and plants’ (7 U.S.C. §2201). The USDA assumed the PTO’s role of distributing free seeds to farmers (Kloppenburg, 1988, p. 60; Aoki, 2003, p. 266), including varieties later developed through publicfunded research at land grant institutions.

Although initially confined to selling European vegetable varieties to residential gardeners, seed brokers recognized the market potential of expansion into commercial agricultureseed and established the American Seed Trade Association (ASTA) in 1883 to lobby for an end to the government’s free distribution of seeds (Aoki, 2003, p. 267). Although initially unsuccessful in eliminating the popular programme, brokers gradually developed a market niche as intermediaries between the farmer and public research institutions. Brokers multiplied new var ieties developed at land grant colleges and sold the seeds to farmers under certified seed labels (Janis and Kesan, 2002, p. 736; Fernandez-Cornejo, 2004, p. 25).

The rediscovery of Mendelian genetics in 1900 and the subsequent development of hybrid corn varieties provided the business community with a technical solution to the problem posed by the natural reproducibility of the seed. Using hybrid technologies, private sector seed developers were able to protect the secrecy (the parent seed lines) behind their inventions. Soybean (and other self-pollinating) seeds, however, could be saved from season to season without legal or genetic restriction.