The restructuring of the crop agriculture industry over the past two decades has enabled patent holders to exclude, prevent and deter others from using certain research tools and delay or block further follow-on inventions.
Protection for a patent claiming a DNA sequence is limited by a “functionality” requirement as disclosed in the patent document
The raging legal debates on the patent eligibility of genetic sequences extend from Europe, where in 2010 the European Court of Justice in Monsanto Technology LLC v.Cefetra BV held that protection for a patent claiming a DNA sequence is limited by a “functionality” requirement as disclosed in the patent document1, to the United States, where from 2012 to 2013, the US Supreme Court in Association for Molecular Pathology v. Myriad Genetics, Inc.2 and Mayo Collaborative Services v. Prometheus Labs, Inc.3 upheld a shift in the broad scope of patentability of genetic sequences. In fact, owing to additional social and moral concerns over human or plant gene patents, governments of countries such as Brazil and China have also tried, either through court decisions and/or enacted policies, to shape their own standards within the international legal framework and their ability to restrict the patentability of subject matter—be it in medicine or industrial agriculture4,5. For example, Brazil allows the patenting of methods to transform plants and expression vectors containing heterologous sequences, but it does not allow the patenting of biological sequences isolated from plants or any parts of plants and plant varieties6. China allows the patenting of isolated sequences, modified sequences and transformed plant cells, but carves out exclusions to make all or part of plants and plant varieties unpatentable7.
Thus, considering how divergent and complex the spectrum of interests in gene patenting is becoming and how limited is our understanding of the practices across various economies, we have designed and developed a dynamic platform, the patent sequence (PatSeq) toolkit, to render biological patents and their disclosed genetic sequences more publicly accessible and their contextual navigation more evidence based8.
We recently reported9 on the mapping of patent-disclosed sequences onto three crop genomes (maize, rice and soybean), the analysis of overlapped sequences among plant and human genomes, and on the recently adopted changes to the scope of patentability introduced by the United State Patent and Trade Office (USPTO). Here, we hand edit each of the three plant genome patent sequence maps to identify sequences referenced in the claims of granted patents and analyze their corresponding patent ownership within the context of other plant intellectual property (IP) rights. We conclude by discussing the impact of the current perceptions of ownership on the industry and the public interests...