The balance between incentivising innovation in plant breeding and preserving access to genetic resources for farmers and breeders has been a major topic of debate worldwide in recent years. In Europe, recent discussions surrounding the regulation of plants produced using New Genomic Techniques (NGTs) were closely linked to concerns over the role of patents in the plant and agricultural sectors. While some stakeholders advocated for restrictions on patent protection for plant-related inventions, the EU’s recently adopted NGT legislation ultimately retained the possibility of patent protection, instead introducing measures aimed at improving transparency and access to information regarding patented NGT technologies.
With the European position now largely settled, attention may increasingly turn across the Atlantic. In the United States, a newly introduced bill, the Fair Seeds for Farmers Act, proposes a far more direct intervention in the relationship between patents, plant breeding and farmers’ rights. If enacted, the legislation would significantly curtail the use of utility patents to protect plant varieties and limit the enforceability of contractual restrictions on seed-saving, breeding and research activities.
Against that backdrop, it is worth considering how plant-related innovations are currently protected in the United States and how the proposed reforms could reshape the landscape.
In the United States, plant-related innovations can currently be protected through three principal forms of intellectual property:
- Plant patents;
- Plant variety protection certificates; and
- Utility patents covering plant varieties.
Plant patents
Plant patents may be granted to inventors who discover or asexually reproduce a new and distinct plant variety. They provide the patent owner with the right to exclude others from asexually reproducing, using, offering for sale, or selling the protected plant (or parts thereof) throughout the United States. However, plant patents are not available for tuber-propagated plants, such as potatoes, or for plants found in an uncultivated state.
Plant variety protection certificates
Plant variety protection (PVP) certificates provide protection for new, distinct, uniform and stable varieties of sexually reproduced, tuber-propagated and certain asexually reproduced plants. As a result, PVP certificates are available for a broader range of plant varieties than plant patents.
A PVP certificate gives the owner the right to prevent others from selling, offering for sale, reproducing, importing, exporting, conditioning, stocking, or using the protected variety to produce a hybrid or different variety during the term of protection.
Importantly, PVP certificates contain two significant limitations on the rights of the owner:
- The farm-saved seed exemption, which allows farmers to save seed produced from protected varieties for use in replanting on their own farms; and
- The breeder’s exemption, which permits breeders and researchers to use protected varieties in the development of new varieties.
Utility patents
Plant varieties may also be protected by utility patents where they satisfy the general patentability requirements of novelty, utility and non-obviousness.
Utility patent protection is generally considered broader and more powerful than protection under the Plant Variety Protection Act because it does not provide equivalent exemptions for farmers or plant breeders. Consequently, the owner of a utility patent may exclude others from making, using, offering for sale, selling, or importing the patented invention. This also includes researchers and breeders who use the seeds or varieties for commercial purposes and experimental purposes with a commercial aim.
Due to this, utility patent protection for plant varieties has become increasingly popular over recent years1¹.
Overlapping rights
These three forms of protection are not mutually exclusive. Companies can currently obtain overlapping rights in relation to the same plant-based innovation. These overlapping rights can lead to costly litigation and provide uncertainty for third parties.
In the litigation between Corteva Agriscience LLC and Inari Agriculture Inc., Corteva had sought to sue Inari for infringement of their both utility patents and plant variety rights concerning their insect-resistant corn plant. Whilst the case has now been settled out of court, it is an example of how companies can enforce multiple, overlapping rights against third parties.
The Fair Seeds for Farmers Act
In July 2026², the Fair Seeds for Farmers Act was introduced in the United States Congress. The Act seeks to enable protection of plant-based innovation, whilst ensuring that farmers, researchers and independent breeders retain the freedom to save, study, breed, propagate and plant seeds.
To achieve this objective, the bill would introduce the following provisions:
“Notwithstanding any other provision of law:
(1) no protection may be provided under any Federal law with respect to a plant, plant variety, or plant germplasm, except pursuant to a law described in subsection (b); and
(2) no contractual obligation or agreement that may be allowable under the laws described in subsection (b) 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.“
In practical terms, the legislation would:
- Restrict protection for plant varieties to the Plant Variety Protection Act and the Plant Patent Act, preventing the grant of utility patents directed to seeds and plant varieties. The proposed changes would apply to pending and future patent applications, while existing patents would remain unaffected.
- Prevent seed companies from restricting research, breeding, propagation or seed-saving activities, including through contractual arrangements. These provisions would apply to agreements entered into on or after the date of enactment.
Potential impact
If enacted, the Fair Seeds for Farmers Act would significantly expand the freedom of farmers, researchers and breeders to work with protected plant varieties. By removing utility patent protection for plant varieties, the legislation would prevent rights holders from circumventing the farm-saved seed and breeder exemptions available under the Plant Variety Protection Act.
The bill would also restrict the use of contractual provisions that limit research, breeding, experimentation, seed saving or propagation. Notably, these restrictions are drafted broadly and are not limited to farmers and breeders. Instead, they apply to the use of plant material by any person.
This aspect of the legislation could have implications beyond traditional farming and breeding activities. For example, in the Inari v Corteva dispute, Inari had allegedly agreed to restrictions prohibiting commercial use when obtaining deposits of Corteva seed material. If enacted in its current form, the Fair Seeds for Farmers Act may provide grounds for challenging the enforceability of similar material transfer agreements in the future.
Looking ahead
The bill must still progress through the congressional legislative process, including committee consideration and approval by both the House of Representatives and the Senate, before it can become law.
However, should it ultimately be enacted, the legislation would represent a significant shift in US plant variety protection and bring aspects of US law closer to the position under the European Patent Convention, where plant varieties are excluded from patentability.
- MacDonald, J. M., Dong, X., & Fuglie, K. (2023). Concentration and competition in U.S. agribusiness (Report No. EIB-256). U.S. Department of Agriculture, Economic Research Service. https://doi.org/10.32747/2023.8054022.ers
- “McGovern, Casar Introduce Fair Seeds for Farmers Act to Address Affordability Crisis, Put America’s Farmers and Families Ahead of Billionaire Big Ag Corporations”. Jim McGovern. 14/07/2026. Press release.
