Owning a Living Thing: Plant Patents, the Plant Variety Protection Act, and What Happens to the Second Generation
By Casey Scott McKay ·
An invention that reproduces itself breaks most of the assumptions patent law is built on, which is why plant innovation runs on three overlapping regimes instead of one. This article works all three. It covers plant patents for asexually reproduced varieties, the Plant Variety Protection Act certificates that govern seed-propagated crops with their built-in research and farm-saving exemptions, and the utility patents that J.E.M. Ag Supply confirmed are available for the same subject matter without those exemptions. It then works the question that actually decides cases - what happens to the second generation - through Bowman v. Monsanto and the exhaustion analysis for self-replicating technology. It closes with germplasm as trade secret, variety naming, and the grower contracts that carry most of the enforcement.
IP and Technology > Patent Counseling Transactions | Article | Published 10 September 2023 - Updated 4 June 2026 | Casey Scott McKay - marksy.us
Summary. An invention that reproduces itself breaks most of the assumptions patent law is built on, which is why plant innovation runs on three overlapping regimes instead of one. This article works all three. It covers plant patents for asexually reproduced varieties, the Plant Variety Protection Act certificates that govern seed-propagated crops with their built-in research and farm-saving exemptions, and the utility patents that J.E.M. Ag Supply confirmed are available for the same subject matter without those exemptions. It then works the question that actually decides cases — what happens to the second generation — through Bowman v. Monsanto and the exhaustion analysis for self-replicating technology. It closes with germplasm as trade secret, variety naming, and the grower contracts that carry most of the enforcement.
Keywords: plant patents · asexually reproduced plants · Plant Variety Protection Act · PVP certificates · utility patents on plants · J.E.M. Ag Supply · Bowman v Monsanto · self-replicating technology · seed saving exemption · research exemption · Asgrow v Winterboer · deposit requirements · variety denomination · grower agreements · trait licensing · exhaustion · germplasm trade secrets · farm-saved seed · essentially derived varieties · breeder rights
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