Genetically modified organism (GMO) patents refer to intellectual property rights that the United States government issues to inventors of GMOs as a form of protection against infringement. GMOs are food products that have been artificially modified through genetic engineering to possess new traits and benefits. As the demand for food increases around the world, more GMO products are being invented, leading to a rise in the number of GMO patents granted.

Patent Issues for Genetically Modified Organisms

There has been debate concerning the level of protection that should be given to GMO companies and whether it's appropriate to use patent rights against farmers. By and large, it appears that the courts are siding with the companies.

Those who support GMO patents argue that food should be given as much producer protection as other products as long as it is sold like any other commodity. In response to that, opponents to GMO patents say that obtaining patents for crops enables large food companies to swindle farmers' money and turn food into a commercial commodity instead of a right. With all things being equal, the deconstruction of free-market agriculture will eliminate the need for GMO patents. Nonetheless, with the world population estimated to surpass the 10-billion mark soon, there is a need for more efficient agricultural production.

Biotech Patents

The United States leads the world in biotechnological innovation, and it has been issuing an increasing number of biotech patents over the past few years. In 2013, the government imposed the American Invent Act to transition from a “first-to-invent” to a “first-to-file” system as a way to encourage inventors to apply for patents promptly. In addition, the new act introduced many options that can be used after a patent is granted to make it easier for third parties to challenge patent validity. With the legal system evolving alongside biotechnological advancements, more high-quality GMO innovations are expected to emerge in the future.

Gene Patents

While the Supreme Court recently ruled out gene patents, GMO companies are still being granted patent rights on complementary DNA (cDNA), which is a variation of the original gene. A patent on the cDNA version of a gene and its variations allows a GMO company to stop other parties from integrating the gene into other plants without getting a separate patent for each plant. Monsanto used this kind of patent protection to generate Roundup-tolerant corn, soy, canola, cotton, and alfalfa with the same core technology. Bayer and Syngenta are other companies whose businesses largely involve GMOs and that possess utility patents on them.

Why Are GMO Companies Granted Patents?

According to the United States Constitution, patents can be granted for novel inventions. The patent system encourages innovation by giving inventors the exclusive rights to commercialize their products within a certain time frame. On average, it costs about $136 million to discover, develop, and authorize a new GMO plant. Companies will not be willing to make such an investment if they are not granted exclusivity.

From the initial filing, a utility or plant patent provides protection for 20 years. After the patent expires, the GMO will become public knowledge, meaning that it will be accessible to everyone. It can be reproduced on a large scale and other parties can use the underlying genetic design to develop better versions of the GMO. To compensate for the high costs of research and development, multinational corporations must patent their products to remain profitable and prevent other companies from releasing similar products.

Utility Patents

GMO companies usually do not obtain plant patents. Instead, they apply for utility patents, which have more stringent criteria on the descriptions of their inventions. Plants that are discovered by chance or developed through crossbreeding often do not meet the requirements, but detailed molecular information of GMOs is usually available. Overall, utility patents offer better protection for GMOs than plant patents.

What Is Covered by the GMO Patents?

GMO patents can provide protection for the following:

  • GMO plants
  • New plants that are discovered or invented in a cultivated state and can be asexually reproduced
  • New plant strains that are derived from crossbreeding
  • Plants that are sexually reproduced by licensees. Their seeds cannot be given or sold to other parties for planting.

If you need help with GMO patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.