18. Cultivar Release, Commercialization and maintenance

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by Eric Elsner; Institute of Plant Breeding, Genetics & Genomics, University of Georgia, Athens, GA.

Abstract

The goal of modern plant breeding programs is to develop superior agricultural and horticultural cultivars. Within university systems, the breeder must complete an application for release of the cultivar. As part of the release application, the breeder must state the reason(s) why the cultivar should be released and provide data substantiating any claims made on behalf of the cultivar. In the United States, new cultivars are considered intellectual property and as such they are eligible for protection under applicable federal law. The three main ways cultivars are protected are through Plant Variety Protection Certificates, Plant Patents, and Utility Patents. After protection is secured for the cultivar, the owner of the cultivar can enter into domestic and international licensing agreements with outside parties. Before commercialization of a new cultivar can begin, sufficient quantities of seed or plant material are needed and this task is accomplished by the foundation seed agency of the state in question. Depending on the wishes of the cultivar’s owner or licensee, the state’s official seed certifying agency is usually responsible for ensuring that the production of the cultivar is maintained in such a way as to satisfy the quality standards contained in the Federal Seed Act.

Abbreviations

GAES Georgia Agricultural Experiment Station

GCIA Georgia Crop Improvement Association

GSDC Georgia Seed Development Commission

ORC Ornamental release committee

PCGRC Plant Cultivar and Germplasm Release Committee

PRC Plant release committee

PVP Plant Variety Protection Certificate

UGA University of Georgia

UGARF University of Georgia Research Foundation, Inc.

Introduction

A plant breeder is a person who seeks to change the genetics of plants for the betterment of his or her fellow man, either through food and fiber production or for aesthetic purposes. A plant breeder’s primary goal is to develop improved cultivars of agronomic and horticultural plants. Aside from releasing cultivars, breeders may wish to release or make available to others: associate cultivars, parental lines, or other forms of germplasm. For simplicity’s sake, except in cases where specific differences must be addressed, it will be assumed in this paper that the plant material of interest is a cultivar.

In order for mankind to benefit from the efforts of the plant breeder, the cultivar must: 1) be available to appropriate producers in sufficient quantity as to allow for economically viable production, and 2) be maintained in such a way as to ensure that the cultivar performs as advertised for the lifetime of said cultivar. In other words the cultivar must be maintained “true-to-type”. The ways in which these two requirements are fulfilled in the United States will form the basis of this paper. The federal government has addressed these issues on a national level through legislation. States have specific laws and regulations concerning the distribution of improved cultivars and within states, public institutions and private companies have similar, but distinct procedures for cultivar release and maintenance. To cover each of these areas in detail would be outside the scope of this paper, and many of the guidelines that are followed derive from federal law, so I intend to concentrate primarily on the procedures utilized by the University of Georgia and the Georgia Department of Agriculture. One other point that will be addressed is ownership of the new cultivar. Cultivars are considered intellectual property and therefore may be eligible to receive protection under the intellectual property laws of the United States and the policies of the organization that developed the cultivar. There are several methods utilized for protecting intellectual property and these will be addressed as well.

Cultivar Release Procedures

New plant material originating at the University of Georgia (UGA) is released through the Georgia Agricultural Experiment Station (GAES) and as such, the Director of the Georgia Agricultural Experiment Station must give final approval prior to any cultivar being released by a plant breeder at UGA (UGA CAES policy #9, 2010). Before reaching the Director of the GAES, the candidate plant material must be recommended for release by a Plant Cultivar and Germplasm Release Committee (PCGRC). Two cultivar release committees exist at the University of Georgia; one committee has the responsibility of considering ornamentals (ORC), and one committee handles all other plant material (PRC). Breeders desiring to have a cultivar considered for release must submit a completed “Application for Release” to the appropriate release committee. Key features of the release application include: The crop (common name, genus, species), the pedigree and history of the candidate cultivar, the need for and potential users of the plant material, a justification for release including data documenting performance claims or other characters meriting release, names of scientists participating in the development of the cultivar, the method of propagation, and the recommended form of intellectual property protection to be obtained upon release of the cultivar.

Before discussing release procedures at the University of Georgia, I will briefly discuss the differences associated with the various types of plant material eligible for release. A cultivar is generally assumed to be a “complete package” that possesses one or more traits or levels of traits which make it superior to similar cultivars and no glaring deficiencies. Within the release procedures, the designation of plant material as an associate cultivar implies that, while the cultivar may be superior in performance to existing cultivars, it lacks one or more important traits that may be important in certain growing environments. Associate cultivars therefore, should be made available on a limited basis to growers and breeders, but because the plant material does not constitute a “complete package”, they are not eligible to be classified as a cultivar. In many cases, an associate cultivar may be a sister line of a cultivar (Dr. Earl Elsner, personal communication, 2011). In order to be considered for release, germplasm must have been improved by a breeding program. It must possess a trait(s) which would be desirable to a breeding program, but does not need to be in a commercially viable form. Parental lines considered for release must have supporting data showing the significance of either their general or specific combining ability according to the intended use of said line (UGA CAES policy #9, 2010). While the application is the same for all prospective plant material, the individual crop and how it will be released (cultivar, associate cultivar, etc…) dictates how and in what detail the application is completed. For instance, a candidate soybean (Glycine max) cultivar will likely have an extensive pedigree if the candidate is the product of one or more elite breeding lines (Boerma et al. 2010). This lengthy pedigree can be contrasted with the pedigree and history of ‘TiftSport’ bermudagrass (C. dactylon x C. transvaalensis) which was the result of a one-time, induced mutation of ‘Midiron’ bermudagrass stolons (Hanna et al., 1997).

The “need for and potential users of plant material” section provides the breeder with an opportunity to explain why and how the candidate can positively impact the market. The release of ‘TiftSport’ bermudagrass introduced genetic variability into a market that was dominated by one or two predominant genotypes (Hanna, 1997). The UGA release application for T-959 blueberry (Vaccinium ashei Reade) notes that the large fruit size associated with T-959 should allow it to compete with large fruited cultivars in the “fresh picked” market. It is also noted that larger fruit facilitates more efficient hand harvest (NeSmith, unpublished data, 2010).

The “justification for release” section of the application is used by the breeder to support their claims. One agronomically or horticulturally important trait being improved upon is sufficient grounds for release (UGA CAES policy #9, 2010). There are many variables that determine the amount and types of data that will be included in this section. Each breeder will have begun a breeding effort with a specific set of goals in mind. A maize (Zea mays) breeder would likely hope to increase grain yield, along with protein content, oil percentage or some combination of these and other traits. A breeder of ornamental hollies (Ilex spp.), on the other hand, may be interested in selecting a phenotype that is lower growing, has denser foliage, or one that is more upright with darker foliage. These two breeders will obviously have very different claims to support and the ways they support their claims will be different as well.

Up to this point the discussion has centered on the efforts of breeders to release cultivars. We will now discuss the process through which the release is protected and commercialized.

Commercialization And Marketing Of Plant Material

Introduction

Prior to 1980, The United States government owned university inventions that resulted from federally funded research programs. These inventions were available to anyone who wanted to utilize them on a non-exclusive basis. As a result, many university-derived inventions were under-utilized due to the reluctance of private industry to invest in and market an invention or technology that was available to anyone. The passage of the Bayh-Doyle act of 1980 allowed universities to retain ownership of inventions derived from federally funded programs. The act further allowed universities to become directly involved in the commercialization process and to offer exclusive licenses on inventions and technology derived from federally funded research (Bayh-Doyle act, 1980).

Protection of Intellectual Property

Every individual, as a condition of employment at The University of Georgia, is required to sign an intellectual property agreement. This agreement, in its simplest form, states that any and all intellectual property developed at the University of Georgia, or developed using University of Georgia resources or facilities, is the property of the University of Georgia (University of Georgia, 2011). In 1995, the University of Georgia and The University of Georgia Research Foundation, Inc. (UGARF) entered into an agreement which assigned ownership rights to all intellectual property developed at the University of Georgia to UGARF. UGARF was also charged with evaluating all intellectual property disclosures and commercializing applicable intellectual property (University of Georgia, 1995). The organization within UGARF responsible for these tasks is the Technology Commercialization Office (TCO).

There are several types of intellectual property protection available for plant material and the decision on which method to use depends in part on the wishes of UGARF, the breeder, and also on the type of plant material in question. Methods used for protecting novel plant materials include Plant Variety Protection Certificate (PVP), Plant Patent, and Utility Patent. Each method of protection will be discussed and important distinctions between methods will be noted.

Plant Variety Protection Certificate

The PVP Act of 1970 gives intellectual property rights to “the breeder of any sexually reproduced or tuber propagated plant variety” and further gives the breeder the right to exclude others from reproducing or selling the cultivar (Chen, 2005). In order to be considered for a PVP certificate, the plant material in question must meet four requirements. First, the cultivar must not have been available to the public for more than one year. Second, the cultivar must be distinct and distinguishable from similar cultivars of the same species. Third, the cultivar must be uniform and any variation must be described and predictable. Finally, the cultivar must be stable and remain true-to-type when reproduced. The PVP Act, as amended in 1994, prohibits all unauthorized sale, trade, or transfer of seed of protected cultivars (Resource Seeds, Inc., 2004).

In order to be considered for PVP, an “Objective Description of Variety” form must be completed and submitted to the United States Department of Agriculture (USDA) Agricultural Marketing Service. Upon receipt of the description by the PVP office, the case will be assigned to a PVP examiner within the department and that examiner will determine if the candidate cultivar warrants plant variety protection. Different forms are available for different crops as there are obviously different descriptions needed for different crops. The description form for soybean asks for, among other things, seed shape, seed coat color, flower color, pod color, disease reactions, herbicide reactions, and transgenic composition (Plant Variety Protection Office, 2009). The description for cotton (Gossypium spp.) includes data for area of adaptation, number of seeds per boll, grams seed cotton per boll, fiber properties and disease reactions (Plant Variety Protection Office, 2009). When a PVP certificate is issued for a cultivar, the cultivar is protected under the guidelines of the Plant Variety Protection Act for 20 years from the date of certificate issue.

Plant Patent

A plant patent may be granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant other than a tuber. A plant patent gives the patent holder the right to exclude others from asexually reproducing, selling, or using the plant so reproduced (Plant Patent Law, 1952). Cultivars protected by plant patent are eligible for use in other breeding programs, as long as they are used via sexual reproduction (Brent Marable, personal communication, 2011). The requirement for asexual reproduction is one of the key features that distinguish a plant patent from a PVP certificate. Once granted, plant patents are in effect for 20 years from the date of patent issue. In order to be eligible for a plant patent, the plant in question must not have been offered for sale in the United States for more than one year at the time of application and the plant must not have been described in published literature for more than one year prior to the application being filed. Applicants wishing to file an application for a plant patent should be prepared to provide a detailed botanical description of the plant in question as well as a statement regarding federally-sponsored research (if applicable), a description of the parents, and a description of the characteristics of the candidate plant. The preceding was not a complete list of items required in order to be granted a plant patent but merely a sampling of the process.


Utility Patent

The most recent (and arguably most controversial) method of intellectual property protection as it relates to the plant breeding industry is the use of a utility patent. Utility patents are a means by which breeders can protect sexually propagated plants under patent law. When speaking in general terms, a utility patent is the most common type of patent issued. Utility patents have been issued in the United States for several hundred years but it is only within the last thirty or so years that they have been applied to sexually reproduced plants. In order to be granted a utility patent, the invention must be new, useful, and non-obvious. Applicants must also provide a botanical description of the plant similar to that required for a plant patent and must submit a sample of seed of the plant in question.

With either type of patent, utility or plant, the government is essentially giving the patent holder a monopoly on the invention for a limited period of time (in most cases 20 years) and in return, “the patentee must disclose in the patent sufficient information to put the public in possession of the invention and to enable those skilled in the art to make and use the invention” (Carpenter, 2005).

Plant Variety Protection Certificates and plant patents are designed to protect an entire plant. Utility patents can be used to protect whole plants or parts of plants including genes or parts of the genome that code for non-plant proteins. In other words, an inventor can be granted a patent on a gene(s) that is part of the genome of the plant as long as the invention (gene) meets the criteria outlined in Title 35 of United States Code section 112 (Carpenter, 2005). It is also important to note that sexually propagated plants protected by PVP may be used in a breeding program, and cultivars protected by plant patent may be used in a breeding program (sexual reproduction only), but sexually propagated plants protected by utility patent may not be used for breeding purposes without the consent of the patent holder (Dr. John Ingle, personal communication, 2011). Table 1 describes the types of plant material protected by each form of intellectual property protection discussed above.

Table 1 Plant material protected by each form of intellectual property protection.

Licensing

As mentioned previously, the Technology Commercialization Office within UGARF is responsible for securing appropriate protection for university derived cultivars and commercializing the cultivar through licensing agreements with outside organizations. Commercialization is accomplished with two basic types of license agreement, exclusive licenses and non-exclusive licenses. An exclusive license is granted to an organization or person with the understanding that they are the only licensed propagator of the plant material in question. All other persons are prohibited from propagating the plant material unless under specific authority of the license holder (Dr. Earl Elsner, personal communication, 2011). It follows then that a non-exclusive license may be offered to multiple users of the plant material. If for example the cultivar in question is licensed to a commercial seed company, the license will most likely be exclusive in order to prevent other seed companies from marketing the same cultivar. A blueberry cultivar, or ornamental shrub destined for the landscape market may be licensed non-exclusively to multiple growers across a region. Usually, a potential licensee will pay an “up-front” fee for the initial license to be granted and will thereafter pay royalties to the licensing organization based on the terms of the agreement. License agreements are confidential and therefore specific examples will not be given. Each different crop requires a license tailored specifically for it and each party involved will attempt to negotiate an agreement that is satisfactory to their desires while remaining acceptable to the other involved parties. An exclusive license agreement for meadowfoam (Limnanthes alba), for instance, may require the licensee to pay royalties based on pounds of oil derived from crushed seed. Royalty calculations may be based on a percentage of net or gross sales, or on a unit of measure. A non-exclusive license agreement for a turfgrass cultivar may require the licensee to pay an initial fee to become a licensed grower and thereafter pay a royalty based on the numbers of bushels of sprigs sold or the square feet of sod sold.

Along with allowing universities to retain ownership of inventions derived from federally sponsored research, the Bayh-Dole act of 1980 requires the owner of the intellectual property to share royalties derived from the invention with the inventor (Bayh-Dole act, 1980). In other words, the breeder is entitled to some portion of the royalties generated from the commercialization of a cultivar that he/she developed. The purpose of this section of the act is to encourage commercialization by ensuring monetary benefit to the inventor(s) (Dr. Earl Elsner, personal communication, 2011). At the University of Georgia, royalties collected from licensed cultivars are distributed as follows (net royalties): 5% to UGARF, 20% to the Georgia Seed Development Commission (GSDC), 75% to the breeder until the breeder has accrued $10,000. After the breeder has accrued $10,000, 5% is paid to UGARF, 20% is paid to GSDC, 25% is paid to the breeder, 10% is paid to the breeder’s cultivar development program, 10%is paid to the breeder’s department, and 30% is paid to the GAES Cultivar Development Research Program (UGARF-GSDC agreement, un-published, 1997). Figure 1 outlines the royalty distribution procedures at the University of Georgia. After the breeder has accrued $10,000.00, forty percent of the royalties received are reinvested directly into plant breeding programs at the University of Georgia.


Figure 1 Plant licensing revenue distribution.


At first glance, the 20% royalty received by GSDC may seem high. However, it is important to note that, among other things, GSDC is responsible for the production of foundation seed and this can be quite expensive. It is also important to note that there are instances where foundation seed is produced for a cultivar that for various reasons is never released and in those instances, GSDC is not reimbursed for the money spent producing foundation seed. Foundation seed production will be covered more thoroughly in the cultivar maintenance section of the paper.

The GAES Cultivar Development Program is a program whereby UGA plant breeders can submit grant proposals for cultivar development. This can be useful to breeders who are just beginning their careers and building a breeding program literally from the ground up. The program is also very useful to breeders who wish to work on specialty crops that may not be widely known or have very few sources of funding. Today’s economic climate has forced university researchers to look outside their departments for sources of funding. This can be difficult for plant breeders due to the time and financial commitment needed for cultivar development. The Cultivar Development Program at the University of Georgia has played a significant role in helping breeders fund their programs.

The details of licensing and royalty distribution will vary from university to university but generally speaking: 1) universities protect appropriate intellectual property through PVP, plant patent, or utility patent, 2) universities license intellectual property to domestic and international organizations, and 3) some portion of the royalties generated from licensing must be paid to the inventor (breeder) if federal funds are involved.

The technology commercialization offices at most universities also handle material transfer agreements and restricted testing agreements. As stated earlier, any intellectual property derived at the university is the property of the university. For instance, if a breeder develops an advanced breeding line, it is the property of the university. The breeder is not allowed to give or loan plant material to any outside organization without authorization. Material transfer agreements and restricted testing agreements are usually comprised of a very narrow set of requirements that state exactly what the “loaned” plant material may or may not be used for. There may also be language stating partial ownership of any invention arising from the use of the “loaned” material.

Cultivar Maintenance

Up to this point, this paper has been concerned with the release and commercialization of new cultivars. Before a cultivar can be approved for release, a breeder makes claims as to the performance of the cultivar and presents data to support those claims in the cultivar release application. Another important step in the cultivar development process is increasing plant material or seed to a level that commercial seedsmen or nursery propagators can move the cultivar into the marketplace. Finally, what procedures are used to maintain the cultivar’s genetic “true-to-type” throughout its life? For example, a breeder has developed a superior cultivar, but he only has 100 lbs. of seed or a few square feet of turfgrass. How do we take the breeder seed or stock and increase it to a point that there are sufficient quantities available for commercialization? After the cultivar is increased and made available to producers, how can potential producers be assured that the seed or plants they purchase will perform as advertised? For example, ‘Tifway bermudagrass was released in 1960, how can we be sure that in 2011, ‘Tifway’ bermudagrass is still ‘Tifway’? If you are a licensee for a new cultivar, where do you go to get seed or plants of the new cultivar? These questions are answered by the Georgia Seed Development Commission (GSDC) and the Georgia Crop Improvement Association (GCIA). The GSDC is the legal and required recipient of breeder seed and plants and is responsible for replicating and maintaining appropriate quantities of seed and plant material of cultivars developed at the University of Georgia (Dr. Earl Elsner, personal communication).

The Federal Seed act (1939) required each state to name no more than one official seed certifying agency. These agencies’ responsibilities include making sure that the federal seed act’s certification standards are met in each state. In Georgia, the official seed certifying agency is GCIA. There are several ways in which the seed certifying agency and the foundation seed producing agency are organized. Some seed certifying agencies are non-profits working as an agent of a university (Georgia is an example). Some seed certifying agencies are a part of the extension service of their university (Auburn), Some agencies are a part of the department of agriculture for that state (Arkansas) and some agencies are for-profit organizations (Minnesota) (Terry Hollifield, personal communication, 2011). Likewise, some foundation seed organizations are organized with the Crop and Soils Department of a University (Kentucky), some are organized with their state Department of Agriculture (Georgia), some are organized with the seed certifying agency (Virginia), and some are independent and “for-profit” (Ohio) (Earl Elsner, personal communication, 2011). Although there are several different means of organization, the agencies, generally speaking, operate under guidelines described in the Federal Seed act of 1939 and memoranda with associated universities. These two agencies work very closely together and for the sake of brevity, I will discuss their responsibilities in tandem.

When a cultivar is released, the breeder will have breeder seed or breeder stock plants available to provide to the foundation seed agency. The foundation seed agency will then enter into a contract with a grower to increase the breeder seed. This increase of breeder seed results in a quantity of foundation seed. Excluding breeder seed, there are three classes of certified seed: foundation seed, registered seed, and certified seed with foundation seed being the next generation beyond (or closest to) breeder seed. In an effort to safeguard the purity of the cultivar, certified seed is never more than two generations from foundation seed. Depending on the quantity of foundation seed harvested, one or more increases may be needed in order to have sufficient foundation seed inventory needed for commercialization. Once the quantity of foundation seed is sufficient, foundation seed is offered for sale to seedsmen. Seedsmen will plant foundation seed and harvest registered seed. A planting of registered seed will result in a harvest of certified seed. It is important to restate that by following this method, certified seed is never more than two generations from foundation seed. Once the seedsman has harvested registered seed, he/she has three options: 1) plant registered seed and harvest certified seed, 2) sell the registered seed to another seedsman, or 3) downgrade the registered seed to certified and sell it as certified seed. The certification classes may be downgraded (foundation to registered or registered to certified) but they may not be up-graded. Once certified seed has been produced, it can be sold to a grower who grows the crop and sells his harvest at the marketplace. If the released cultivar has been licensed to a private seed company, the details of the license agreement will dictate how the seed is increased. In Georgia, a private seed company licensing a GAES cultivar usually does not produce their own foundation seed, they must return to the foundation seed agency (GSDC) and purchase foundation seed according to the terms of the license agreement (Dr. Earl Elsner, personal communication, 2011).

While GSDC is responsible for producing foundation seed, GCIA is the regulatory agency responsible for ensuring that seed certification standards are met. Some certification standards vary by crop but others are constant. For example, there are approximately 38 weeds listed as “noxious weeds” on the GCIA website and none of these weeds are permitted in Georgia certified seed. All certified seed must be conditioned (cleaned and readied for sale) in a GCIA approved conditioning plant. The GCIA also requires detailed information on the morphology of the cultivar in question so that they may be able to develop certification standards for it (GCIA, 2011).

Regardless of the crop, certification standards are most stringent for foundation seed. For example, the certification requirements for small grains (barley, oats, triticale, and wheat) concerning “other varieties whose heads can be differentiated from the variety being inspected” is as follows: for foundation seed, number allowed: 0; for registered seed, 1 plant for every 250,000 plants of the cultivar being inspected; and for certified seed, 1 plant allowed for every 150,000 plants of the cultivar being inspected. Along with maintaining standards for crops growing in the field, GCIA also maintains quality standards for seed. Each bag of foundation, registered, and certified seed has an attached tag listing the contents of the bag. Continuing our small grains example, a bag of certified wheat seed is guaranteed to contain no less than 98% pure seed, no noxious weeds, no objectionable weeds (in this case, vetch), a minimum germination of 85%, and a maximum moisture of 12%. Although the examples used have been seed crops, GCIA also certifies turfgrass, forest trees, pecan, miscanthus, and many other crops (GCIA, 2011). Each of these has specific requirements, but all limit seed and plant increases to two generations after foundation.

Entering a new cultivar into the state’s certification program is not mandatory and there are occasions where a licensee may desire to be responsible for the quality standards of the cultivar. When this occurs there is usually language added to the license agreement to the effect of “quality standards of the cultivar will be no less than the minimum standards of the state’s seed certifying agency” (Dr. Earl Elsner, personal communication, 2011). One of the primary goals of the foundation seed agency and the seed certifying agency is to ensure that, throughout the life of the cultivar, the cultivar on the farm is the same cultivar developed by the breeder.

For the sake of simplicity, the cultivar release, commercialization, and maintenance descriptions were discussed in a linear fashion. In reality, these processes may at times overlap. For instance, as noted earlier, it may require one or more years to build the inventory of foundation seed (or plants) to the levels needed for commercialization. If the foundation seed agency waits until a license agreement has been signed before foundation seed production begins, it will likely be three years before the cultivar reaches the end user. In order to avoid this and other potential problems, the foundation seed agency and the breeder may elect to begin production of foundation material two or more years prior to release so that seed/plants are ready to market as soon as possible. Likewise, the technology commercialization office may elect to seek out potential licensees or “test the water” prior to an official release of the cultivar.


Conclusion

Through the course of this writing, we have seen how cultivars are developed and brought to the marketplace. Generally speaking, breeders develop plant material with superior performance when compared to existing cultivars and apply for release of the plant material by providing data to support their claims. In today’s model, some form of intellectual property protection protects the vast majority of released cultivars. Therefore, if a cultivar is approved for release, the technology commercialization office within the breeder’s university protects the cultivar with the appropriate form of intellectual property protection. After the appropriate intellectual property protection has been secured, the commercialization office may choose to enter into either exclusive or non-exclusive license agreements with outside parties. The foundation seed agency receives breeder seed from the breeder and begins production of Foundation seed to be sold to interested parties depending on the terms included in the license agreement (if one exists) until such time as there is no longer sufficient demand for the cultivar to justify further foundation seed production. The seed certifying agency of the state ensures that the foundation seed being produced meets the seed certification standards for the crop in question and if further generations of registered and certified seed are desired they are responsible for the certification of those generations as well.

As previously mentioned, the various steps discussed have been presented in a linear fashion. In reality, the steps can at times overlap each other. It should be apparent that each of the organizations involved in this process rely heavily on each other to achieve the common goal of releasing superior cultivars. If a breeder releases a poor cultivar, there is nothing anyone can do to make it something that it is not. If the foundation seed agency does not produce adequate quantities of foundation seed, the cultivar will not gain adequate market share. If the certifying agency does a poor job of regulating the production of the various classes of certified seed, the end user may not receive what they are paying for and will look elsewhere for next year’s product.

This paper answers many of the questions surrounding cultivar release, commercialization, and maintenance but there are many unanswered questions that remain and that are beyond the scope of this discussion. Is it acceptable for breeders (public or private) to secure utility patents for their cultivars, breeding lines, etc…and effectively exclude the rest of the world (and other tax-payers) from access to them? Is it acceptable for public universities to exclusively license their releases to private seed companies? Is it acceptable for a license holder to decline the services of the state’s seed certification agency in favor of their own procedures? Should universities step-up their efforts to ensure compliance with license agreements and attempt to minimize un-licensed propagation of protected cultivars? Can (or will) anything be done to stop the decline of public breeding programs? These are but a few of the questions that illustrate the challenges facing the plant breeding community today and the answers to these questions will help to determine how we feed the world’s population.


References

Bayh-Dole Act of 1980. 35 United States Code Section 200.

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Carpenter, J.D. 2005. Intellectual property: the overlap between utility patents, plant patents, the PVPA, and trade secrets and the limitations on that overlap. North Dakota Law Review. Vol. 81:171.

Chen, J. 2005. The parable of the seeds: interpreting the Plant Variety Protection Act. 81 Notre Dame Law Review 105 (2005-2006).

Federal Seed Act of 1939. 7 United States Code 1551 et seq.

Georgia Crop Improvement Association. 2011. Certification standards [Online]. Available at: http://www.certifiedseed.org/

Hanna, W.W. 1997. Bermudagrass plant ‘Tift 94’. U.S. Plant Patent 10,079. Date issued: 21 Oct. 1997.

Hanna, W.W., R. Carrow, A. Powell. 1997. Registration of ‘Tift 94’ bermudagrass. Crop Sci. 37: 1012.

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Resource Seeds, Inc. 2004. PVP- U.S. Plant Variety Protection Act as amended 1994 [online]. Available at: http://www.resourceseeds.com/library/PVPP/PVP_information_for_growers.pdf

University of Georgia Board of Regents. 1995. Intellectual property administration agreement [Online]. Available at: http://www.research.uga.edu/docs/policies/ugarf/UGARF-BOR-IP-Agreement.pdf

University of Georgia College of Agriculture and Environmental Sciences. 2010. Policy #9 [Online]. Available at http://www.caes.uga.edu/intranet/research/9 Cultivar Assc Cultivar GP PL GS Rel&Distribution.pdf

University of Georgia Office of the Vice President for Research. 2011. Intellectual property policy of the University of Georgia [Online]. Available at: http://www.ovpr.uga.edu/docs/policies/toc/documents-intellectual property