Whether it was in 1555 with Nostradamus' predictions of doom; or scientists foretelling of a massive meteorite crashing to earth obliterating humanity; mortals have always been preparing for their eventual demise. The key concerns during these apocalyptical scenarios are food supplies and food shortages. As a result, governments and individuals around the globe have beefed up ways to produce, protect, and store food.  In particular, contemporaneously there has been an ever increasing focus on methods of plant protection. 

Plants serve as a food source for both humans and livestock, in addition to serving as herbal remedies and foundations to synthesize more complex medicines; plants can also provide humans and other aerobic forms of life with breathable air.  The protection of plants extends past concerns of biodiversification; since the 1990s, world governments have been ramping up intellectual property mechanism aimed at plant protection.

For example, the United States has three mechanisms for granting intellectual property rights for plants. Two methods are from the USPTO: (1) Plant patents (asexually propagated plants except for plants propagated by edible tubers) and (2) utility patents (genes, trait manipulation processes or plant parts).  The other method is through the United States Department of Agriculture (“USDA”) Plant Variety Protection Office; there Plant Variety Protection (“PVP”) can be granted.  A PVP is an intellectual property right granted to breeders of new varieties of plants which are sexually reproduced by seed (flowers, pollen and stamen), or tuber-propagated (potatoes). USPTO plant patents are valid for a period of twenty years; utility patents are valid for a period of twenty years; and PVPs are valid for a period of twenty five years for vines and trees, and twenty years for other plants.

China, like the United States and many other countries, has also implemented PVPs, in accordance with the International Union for the Protection of New Varieties of Plants (“UPOV”) Convention, into its domestic laws.  In China, a PVP’s terms of validity is twenty years for vines, forest trees, fruit trees and ornamental plants, and fifteen years for other plants. These protections are regulated by the China Ministry of Agriculture’s Plant Variety Protection Office. China also offers other types of IP protection for plants.

The China State Intellectual Property Office (“SIPO”) grants patents that are related to plants, but does not grant patents for plants, plant parts or seeds per se.  SIPO has the ability to grant invention patents that relate to the nonbiological processes, such as botanical bioengineering, and the genetic components involved therein.  SIPO however does not grant patent rights to products produced from botanical biological engineering processes, except for a limited range of products.  These products include: genes and DNA fragments per se that have been extracted and isolated from their natural habitat; proteins and vectors; in addition to plant cells, tissues and organs that cannot maintain life by synthesizing carbohydrate and protein from inorganic substances, all of the abovementioned products can receive patent protection in China. 

The stark contrast between Chinese and US patent regimes in relation to plants and their patentability creates a conflict when US plant and botanical utility patentees want to file their patents in China via the Patent Cooperation Treaty (“PCT”), Paris Convention or direct domestic filing routes. The tug of war between international commerce and domestic agricultural market is another key concern that shapes the differences these two countries share in policy.  

    The USA is the world’s top corn producer and third largest wheat producer.  China is the world’s top wheat producer, top rice producer and second largest corn producer.  Given the vast contrast in population sizes, the USA is the world’s top exporter of food, whereas China is the world’s sixth largest exporter of food.  Given that China already has a robust food and agricultural export sector; it really has no incentive to adjust its patent regime relating to plants, to cater to other countries that allow the patentability of plants and plant parts. Patentee’s domiciled in plant patent friendly nations still have options, outside of applying for PVPs, to gain intellectual property protection relating to their plants in the Chinese market.

One option is to apply for invention patents in China by stripping down their plant and utility patents that relate to plant varieties and plant parts, to their genetic essences and cores, and proceed with filing invention patents.  However, the success rate for this may be a crapshoot at best.  Another option would to be to focus on the processes that lead to a plant patent’s protection, and file invention patents for the processes that have that ability to create a plant that is patentable in another country.  The success rate for this is difficult to predict as well, because is quite possible a non-unique process is employed with a minor variant, which creates a unique plant with patentability outside of China, but since the process may lack inventiveness, it would not meet the criteria for a Chinese invention patent.  Under this reasoning, it would, in effect, dilute the novelty which is required for an invention patent in China. Everywhere in the world the grant of a patent is never certain, and inventors, small to medium-sized enterprises and other prospective patentees are aware of this risk. The best thing is to hire competent legal counsel licensed in China that has expertise in intellectual property law, and has attorneys that are chemists, biologists and engineers that understand the science behind the invention.

Whether the ability for botany to achieve intellectual property protection is merely for commercialization or it involves humankind’s innate fear of extinction, or it involves both of those lines of reasoning, is still just a purely philosophical debate. Mortality shares an inextricable link with commercialization, and the palindromic relationship they possess has waltzed throughout history hand in hand moving backwards and forwards.  Plants were on this planet before humans, and plants will be here after us.  Ultimately, we cannot really own any piece of nature on this rock; we are but mere licensees or lessees of space.  We all have the same fate and that is death, but in the meantime, we have to prepare for when our number is called.  So we had best try to protect our intellectual property by any means necessary to ensure our survival for the generations that are next.