US DOJ flags competition law concerns in Corteva v. Inari plant invention dispute
Jocelyn Bosse
US DOJ flags competition law concerns in Corteva v. Inari plant invention dispute
Jocelyn Bosse Wednesday, May 13, 2026 - competition law, Jocelyn Bosse, patents, plant patents, plant varieties, United States
Earlier this week, the US Department of Justice (DOJ) Antitrust Division submitted a statement of interest in the ongoing dispute between the seed companies Corteva and Inari. The dispute raised concerns from the DOJ about "ensuring that the IP laws are not interpreted to provide greater insulation from competition than necessary, and that the laws incentivize not only large biotechnology firms’ innovation, but also that of small businesses and solo inventors."
Background
The Corteva v. Inari dispute involves the alleged infringement of Corteva's (formerly Pioneer Hi-Bred's) patents and plant variety protection certificates for corn/maize inventions. The IPKat has previously discussed the patent validity aspects of the dispute (see here and here).
Image by Markus Köhli via Pixabay.
In the United States, both plant variety protection (PVP) certificates and utility patents for plant inventions (but not the sui generis "plant patents") usually require the deposit of seeds for the rights to be granted. Like other biological material, the seed samples associated with a patent application are held in an authorised depository such as the the American Type Culture Collection (ATCC).
The dispute arose when Inari obtained access to Corteva's deposited seeds and exported them to Belgium, where Inari used genome editing techniques to produce new corn/maize plants. Corteva argues that this contravened the terms of the ATCC material transfer agreement, as well as amounting to patent and PVP infringement.
The patent bargain
The "patent bargain" is one of the justifications for the patent system. This metaphor describes patents as a quid pro quo: the state offers temporary exclusive rights over an invention in exchange for its full disclosure, so that the public will have the benefit of the invention when the patent expires.
Normally, the disclosure of the invention is achieved by the written description of the invention in the patent specification. If the applicant fails to provide full disclosure, their patent application may be rejected (or the patent held invalid). However, for plant inventions, written disclosure is often ineffective. Therefore, the written description may be accompanied by a deposit of biological material to enable the person skilled in the art to work the invention. These samples must be available for public access without restriction once the patent expires.
It is here that the DOJ had concerns about Corteva's action. The DOJ argued that "the Court should not deem any activity to constitute "infringement" if it is a means of accessing and "reading" biological material that the law requires be made publicly available in exchange for a valid patent or other IP protection." The DOJ continued:
"To hold otherwise would insulate certain products from competition without ensuring the public has received the benefit of the bargain: that the public can ascertain what is thus insulated for the purposes of both avoiding infringement and furthering follow-on innovation."
Material Transfer Agreements (MTAs)
MTAs are pervasive in the seed sector. In its claim, Corteva explained that the ATCC made the protected seeds available for public inspection after the patent was granted, but its MTA expressly prohibited members of the public from using those seeds for commercial purposes, from transferring them outside their organisation, or from using them in contravention of Corteva’s IP rights.
However, the DOJ pointed out that 37 C.F.R. § 1.808(a)(2) requires that "all restrictions imposed by the depositor on the availability to the public of the deposited material will be irrevocably removed upon the granting of the patent." The only exception is that the depository may have a process for providing access to the samples, such as requiring that requests are made in writing and provide the name and address of the requestor. Therefore, the DOJ argued that "neither patent holders nor depositories should be permitted to construct contractual, extra-statutory encumbrances that extend a patent’s boundary."
Conclusion
The existence of competition issues in the US seed sector has been recognised for quite some time. The DOJ's statement referred to several reports to that effect, including the 2023 More and Better Choices for Farmers Report from the US Department on Agriculture. But these are not easy issues to solve.
The DOJ did not tell the Court exactly how the case should be decided, beyond arguing that the decision must allow the public to "read" the biological material, which necessitates physical access to the samples. The DOJ concluded that "To hold otherwise would penalize those who access and use the biological material to understand its specifications, thereby disrupting the carefully crafted balance—protecting competition and innovation—underlying the patent laws." We will have to wait and see how the US District Court of Delaware manages to strike that balance.
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https://ipkitten.blogspot.com/2026/05/us-doj-flags-competition-law-concerns.html