US Congress faces its own debate about a "patent ban" for plants
Jocelyn Bosse
US Congress faces its own debate about a "patent ban" for plants
Jocelyn Bosse Friday, July 17, 2026 - Jocelyn Bosse, Plant Breeders' Rights, plant patents, plant varieties, United States
Just as the EU finalised its regulation on new genomic techniques and left the "patent ban" debate behind [Merpel: for now, at least] (see IPKat here and here for summaries of the EU developments), a bill was introduced this week in the House of Representatives that seeks to bring a "patent ban" for plant inventions into US law.
The proposed Fair Seeds for Farmers Act
The bill was introduced on Tuesday 14 July, sponsored by two Democratic congressmen, Jim McGovern and Greg Casar. According to their press release, the Fair Seeds for Farmers Act aims to "break up Big Ag, protect farmers, lower food costs, and strengthen the U.S. food system by curbing corporate abuse of seed patents."
In the United States, plant varieties can be protected by three main types of IP rights:
- Plant patents, under the Plant Patent Act of 1930;
- Plant variety rights (PVR) certificate, under the Plant Variety Protection Act of 1970;
- Utility patent for a plant variety, which have been granted since the 1980 Supreme Court decision in Diamond v Chakrabarty, with the validity of utility patents for plant varieties confirmed by J.E.M. Ag Supply v Pioneer Hi-Bred International in 2001.
The sponsors of the bill think that three plant variety IP rights is too many. Photo by Natalia Vol via Pexels.
The IP landscape for plant varieties in the US has changed a lot in recent decades. Data from 1971 to 2020 show that utility patents are now far more popular than PVR certificates, although plant patents remain the most popular of all.
Graph from MacDonald, Dong and Fuglie (2023) 'Concentration and Competition in U.S. Agribusiness' p.19.
The problem with having so many utility patents on plant varieties? Under US patent law, there is no breeder's exemption or farm saved seed exemption, whereas these exemptions are available for PVR certificates. Plant patents don't have these exemptions either, but since they have a much narrower scope of protection and are not available for key food crops (i.e., potatoes, wheat, maize, and soybeans cannot be protected by plant patents), they have not created the same level of concern for breeders and farmers.
This Kat previously discussed here that the breeder's exemption is now available under the patent law of many EU member states and the UPC Agreement. The new NGT Regulation encourages the remaining member states to adopt the breeder's exemption in their patent laws (Recital 62). In the US, during the Biden Administration, there was some movement towards adopting a breeder's exemption for utility patents, but it never materialised.
The new bill takes a different approach to the problem by removing the option of obtaining utility patents for plant varieties in the first place. More precisely, it would amend the America Invents Act to include the following sub-section:
“no protection may be provided under any Federal law with respect to a plant, plant variety, or plant germplasm, except pursuant to [the Plant Patent Act of 1930 or the Plant Variety Protection Act of 1970]”
This utility patent ban would only apply to patent applications filed after the law is enacted.
The Contract Ban
Patents aren't the only issue. The second aspect of the bill would make certain types of contracts unenforceable, stating that:
“no contractual obligation or agreement that may be allowable under the [PVR or plant patent] laws ... that limits the use of a plant, plant variety, plant germplasm, or other biological material for research, breeding, experimentation, seed saving, or propagation may be enforced.”
Contracts have become a controversial aspect of the food system. In Italy, we have seen successful challenges to contracts that restricted the sale of harvested grapes to authorised networks (IPKat here). In the US, a 2023 report published by the Department of Agriculture examined the challenges associated with promoting competition and protecting IP in relation to agriculture. The report identified problems with the growing use of licenses that override research and breeding exemptions, and other contractual terms that seemed to extend patent rights beyond the scope contemplated by the law (such as restricting access to varieties after IP rights expire).
These issues have now reached the US courts. The ongoing Corteva v. Inari case involves allegations of PVR and patent infringement, but also considers questions about the alleged breach of a material transfer agreement. As this Kat highlighted a few months ago (IPKat here), the US Department of Justice Antitrust Division intervened in the case to argue, amongst other things, that "neither patent holders nor [seed] depositories should be permitted to construct contractual, extra-statutory encumbrances that extend a patent’s boundary."
Final Thoughts
The Fair Seeds for Farmers Act would have major consequences for agricultural IP rights and licensing in the United States. Ultimately, its approach might prove too radical to make it out of committee, but the bill certainly targets some well-documented problems that were acknowledged during the Biden Administration and have not yet been resolved. At the very least, it demonstrates that there is still some political willpower to question whether the US has landed on the right model for plant IP and contracts, or whether something closer to the European model could be more suitable.
DO YOU WANT TO REUSE THE IPKAT CONTENT? PLEASE REFER TO OUR 'POLICIES' SECTION. IF YOU HAVE ANY QUERIES OR REQUESTS FOR PERMISSION, PLEASE GET IN TOUCH WITH THE IPKAT TEAM.
https://ipkitten.blogspot.com/2026/07/us-congress-faces-its-own-debate-about.html