Key Takeaways

  • Seed patents allow inventors and agribusinesses to control the reproduction, sale, and distribution of seeds, shifting ownership away from farmers.
  • Farmers traditionally saved and replanted seeds, but patent restrictions now prevent this practice and can lead to litigation.
  • Patents cover both genetically modified organisms (GMOs) and conventionally bred seeds, protecting investment but also creating monopolistic markets.
  • Benefits of seed patents include incentivizing innovation, improving crop yields, and funding further research.
  • Disadvantages include reduced biodiversity, higher seed costs for farmers, ethical concerns around “owning” life, and threats to food security.
  • Alternative protections like Plant Variety Protection Certificates and open-source seed licenses offer different approaches to balancing innovation with farmers’ rights.

Seed Patents

Seed patents are important, as seeds are owned by farmers who have done the hard work over thousands of years. However, once commercial seed industries came into existence, such seed ownership transitioned away from the local farmers, as the large corporations stepped in and hindered on farmers rights to own and grow their own crops.

Plants and seeds can be patented if they are defined by a single DNA sequence that has been created by any one person. The patent itself protects inventors, as no one else can manufacture or sell the patented seed so long as you own the patent to it. Specifically, plant breeders and agribusinesses own such seed patents. Unfortunately, this means that the farmers no longer have ownership rights over the seeds. Some of the most common seed distributors include Monsanto, Du Point, and Bayer.

Types of Seed Patents

In the United States, there are several forms of intellectual property protection available for seeds and plants:

  • Plant Patents: First authorized in 1930, these apply to new plant varieties reproduced asexually, such as by grafting or cuttings. A plant must be novel and distinctive to qualify, but wild plants or tuber-propagated plants (like potatoes) are excluded.
  • Utility Patents: Utility patents cover plants, seeds, genes, and even specific traits if they are deemed novel, useful, and non-obvious. Many genetically engineered seeds are protected under this category, which grants broader rights than plant patents.
  • Plant Variety Protection Certificates (PVPCs): Issued under the Plant Variety Protection Act, these protect sexually reproduced or tuber-propagated plants. Unlike patents, PVPCs allow farmers to save seeds for their own use, though resale is restricted.

This variety of protections creates a complex system in which seed companies strategically select the type of rights that best safeguard their commercial interests.

The Use of GMOs

  • A majority of non-GMO seeds are patent protected for businesses so that they can recoup their investment costs.
  • Some crops can produce viable seed that can then be re-used and replanted. However, most businesses do not utilize the viable seeds. In the past, farmers have used the seeds to replant them in subsequent years.
  • Hybridization occurs when breeders take 2 related plants and mate them. This, in turn, produces inbred plants, which appear similar to the parent. The inbred plant is considered pure after 7 to 10 continuous hybridization attempts. Therefore, once the plant has become pure, you will not need to patent it if the plant or seed itself is already protected by a patent.

Legal Disputes and Farmer Challenges

One of the most controversial aspects of seed patents is the litigation between seed companies and farmers. Large corporations have sued farmers not only for intentionally saving patented seeds but also for inadvertent cross-pollination. Even when patented genetic material drifts into a farmer’s field without intent, the farmer may face accusations of infringement.

For many small and independent farmers, the high cost of patented seeds, combined with licensing restrictions, creates financial pressure. These disputes highlight the tension between encouraging innovation and protecting the livelihoods of farmers.

Benefits of Patenting Seeds

There are many benefits to patenting seeds, including the fact that, once you receive a patent on your seed, you’ll be protected from replication. Even if another breeder creates a new plant through reproduction, this amounts to infringement.

Alternative Models to Patents

While patents dominate the seed industry, other models exist to balance innovation with access:

  • Open-Source Seed Licenses: Similar to open-source software, these agreements allow breeders to share seeds freely while requiring that any derivatives remain accessible to others.
  • Public Breeding Programs: Funded by universities and government agencies, these programs aim to create new plant varieties without private ownership restrictions, making them broadly available.
  • Limited-Use Licensing: Some patent holders grant research or educational licenses, allowing scientists to study plant varieties without facing infringement risks.

These alternatives attempt to preserve farmer rights, promote biodiversity, and prevent monopolistic control of the seed supply while still rewarding innovation.

Disadvantages of Patenting Seeds

  • Many activists argue that GMO seeds are bad, and should not be used in plants/seeds that will then be sold to the public.
  • Patenting seeds prevents farmers from saving or even exchanging seeds.
  • Patenting seeds creates monopolies, which prohibits the farmers free choice of how to grow and plant. Furthermore, farmers will be pushed out of this market, leaving large agribusinesses free to determine the price of seeds.
  • Large companies who hold patents can insert genes into plants.
  • A seed itself is not an invention.
  • Seeds are continually creating and recreating itself.
  • Patenting seeds are based on biopiracy, which, in most countries, is considered illegal.
  • Patents on seeds allow these large corporations to sue farmers after the GMO is owned by such corporations.
  • Corporations will contaminate farmers’ non-GMO crops.
  • The ownership of such GMO induced seed threatens food security and biodiversity.
  • Once the corporation takes over the GMO induced crop, the corporation can obtain a patent on it, and thereby, has exclusive rights over any reproduced version of the seed. This leaves little to no ability for farmers to do their jobs. Furthermore, for example, if a corporation owns the rights to a tomato plant, any tomato plant varieties made thereafter are protected by the corporation. This will lead to a significant amount of infringement issues.
  • Corporations can charge farmer a license fee if the farmer chooses to continue growing the crop that is patented by the corporation. More importantly, the patent holder must approve of the farmer’s breeding of the crop.
  • Due to the reduced diversity of crops, the crops have little ability to adapt to changing environmental conditions.
  • A lot of the time, farmers will enter into written agreements with patent holders (large businesses) so that farmers can have the ability to continue growing their own crops, without having to worry about infringement suits down the line.
  • Some plant patent holders grant licenses to academic researchers, who can conduct further studies and research into the crop itself.

Global Implications of Seed Patents

The influence of seed patents extends beyond the U.S. and affects international agriculture. In developing countries, where seed saving has been a cornerstone of farming, patent regimes can disrupt traditional practices and increase dependency on multinational corporations.

Global trade agreements often pressure countries to adopt strong intellectual property protections, sometimes at the expense of small-scale farmers and biodiversity. Critics argue that this trend represents a form of biopiracy, where genetic resources cultivated by communities for generations become privatized under foreign patents.

These global dynamics raise ethical questions about food sovereignty, cultural rights, and the balance of power in the global food system.

Frequently Asked Questions

1. Can farmers legally save patented seeds?

No. Farmers cannot save or replant patented seeds without permission. Doing so violates patent rights and may result in legal action.

2. What is the difference between plant patents and utility patents?

Plant patents cover asexually reproduced plants, while utility patents extend to seeds, genes, and traits, offering broader protection.

3. Do seed patents apply to non-GMO crops?

Yes. Many conventionally bred and hybrid seeds are also patented to protect breeders’ investments, not just genetically modified ones.

4. Why do critics say seed patents threaten biodiversity?

Because they concentrate control in a few corporations, limit seed sharing, and encourage uniformity, reducing the genetic diversity needed for resilience.

5. Are there alternatives to seed patents?

Yes. Options like Plant Variety Protection Certificates, open-source seed licenses, and public breeding programs provide different ways to protect innovations while preserving farmer access.

If you need help with applying for a seed patent, or if you need legal assistance with bringing or defending a patent infringement case on a seed patent, 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.