Patent landscape analysis of inventions based on plant genetic resources for food and agriculture and related digital sequence information

Abstract This article provides an overview of the patent landscape in relation to PGRFA‐based inventions involving naturally occurring (“native”) traits and related Digital Sequence Information/Genetic Sequence Data (DSI/GSD). In particular, it focuses on the potential of patent claims to limit others' uses of PGRFA and related DSI/GSD on which the protected invention is based and/or other PGRFA in which equivalent traits and homologous DSI features are naturally present. We identified a core set of 399 patent documents (first filings)—representing a relatively small percentage of the overall global patent activity as captured through the most relevant PGRFA indicators—that have the potential to limit the use of the PGRFA materials from which these inventions were derived in further research and breeding. Based on the analysis of the claims in these patent families, we also identified 12 types of claims that have medium to high potential to affect the relevant restrictions. However, we were unable to assess the extent to which materials, whose access is facilitated under the framework of the FAO International Treaty on PGRFA, were used in the development of these patented inventions. This is because the current features of the database architecture of the international patent system neither require nor make this data available in a searchable and transparent manner for inventions that incorporate, or are based on, PGRFA obtained from the Plant Treaty's Multilateral System (MLS). Therefore, we propose some options that could be considered in order to address the issues raised in this study, including means to ensure “findable” disclosures of MLS materials upon which patented inventions are based, as well as the further analysis and the development of guidelines, under the auspices of the Plant Treaty, to address the relationship between different types of patent claims and the provisions of Treaty Article 12.3(d), which states that: “Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System.”