A Century of Propertising Plants: examining the role of intellectual property law in protecting biodiversity and food security

Intellectual property rights to plant varieties (“plant IP”) are highly significant for the environment and the food system, but receive relatively little attention from legal scholars. By contrast, plant IP has provoked significant debate in economics, anthropology, geography, and ethnobotany, although this work often demonstrates weak engagement with the substantive doctrines of plant IP laws. In the debates about the role of plant IP rights in the protection of food security and biological diversity, many have asserted that plant IP has been a disaster for crop varietal diversity, an argument that was strongly influenced by the debates in the 1990s about the privatisation of genetic information enabled by the use of biotechnology and genetic modification (Fowler & Mooney, 1990). This contrasts with the insistence from breeders organisations and certain government agencies that plant IP stimulates the development and commercialisation of new, more sustainable plant varieties and is therefore “an area of immense importance for biodiversity and the agricultural industry” (CPVO, 2024). My research will develop and expand on the dataset and methodology of Heald & Chapman (2012) to address the question: how should plant intellectual property develop to effectively promote food security and biodiversity?
I will undertake empirical research on plant IP laws and varietal innovation that significantly advances the work of Heald & Chapman (2012) in two ways. First, whereas Heald & Chapman focused on the United States, my study will compare the plant IP laws and varietal innovation in both the US and Europe, with the latter explored through the experience of the UK and Ireland. Second, whereas Heald & Chapman focused on apples, vegetables, and corn, I will build on their dataset to examine a larger number of plant species, namely potatoes, cereals, fruits, and ornamentals. I will draw on a combination of doctrinal, historical, and socio-legal methods to trace how the emergence of plant IP laws has impacted plant varietal diversity over the last century.
Given the current biodiversity crisis and threats to food security, my research will provide significant empirical data to shape international plant IP policy. The proposed project is timely for two reasons. Firstly, the earliest intellectual property legislation to protect plant varieties, the US Plant Patent Act of 1930, will have its centenary in 2030, which overlaps with the timeline of the fellowship. Secondly, plant IP is named as a component of current environmental and agricultural policies, such as the European Green Deal and Farm to Fork Strategy, but there is a lack of empirical evidence to show how plant IP rights can support these policy objectives (EUIPO, 2022; GHK, 2011). The US, EU, and UK governments are generally pushing for the expansion of plant IP protection, both worldwide (e.g. through trade agreements) and domestically (e.g. through lengthening the duration of protection). At the same time, however, the European Parliament is considering a proposal to exclude plants developed through new genomic techniques from patent protection, while the recent US Department of Agriculture’s “Fair and Competitive Seed Report” (2023) indicated that the complex American plant IP framework may stifle research and development of new varieties, and is ripe for reform to better promote food security, genetic diversity, and agricultural production capacity. My study will directly address concerns about biodiversity and food security and inform ongoing policy debates across the United States and Europe.