To Protect or Not to Protect: Guide for Deciding on Public Release or Intellectual Property Protection of New Plant Cultivars and Germplasm

Abstract

The U.S. Department of Agriculture’s Agricultural Research Service (ARS) and universities have a long and successful history of developing enhanced germplasm and cultivars that are transferred through public release. Today, nonprotected public release may not be the most appropriate mechanism. Intellectual property (IP) protection as it pertains to the plant germplasm and cultivars is involved and complex. Unlike other scientific areas, in the United States there are three distinct mechanisms to protect plants—namely, utility patents, plant patents, and plant variety protection certificates. Each of these mechanisms offers different criteria for protection and covers different types of plants. This article is a practical tool to help research institutions and scientists decide when to consider releasing a germplasm or cultivar, which factors to consider, who should be involved, and whether IP protection is appropriate.