Expiration of Biotech Crop Patents - Issues For Growers

April 15, 2011
ICM News

By Roger McEowen, Center for Agricultural Law and Taxation

In the near future, the last of the Roundup Ready soybean patents will expire. That expiration will be followed by the expiration of other patents on biotech crops and expiring approvals in overseas markets like the European Union and China.

Those expirations could lead to the planting of so-called "generic" versions of Roundup Ready seeds that lack approval in overseas markets, complicating the export process and potentially disrupting billions in trade. Whether the expirations will lead to lower seed prices and more choices for farmers is an open question and greater use of the historic practice of saving some seed and replanting it in the next crop season remains to be seen. But, as patents expire and regulatory approvals for overseas markets become uncertain, a significant question exists as to whether farmers will continue to have access to these markets.

Certainly, as patents begin to expire on various biotech crops, those crops will remain for a period of time in the commercial grain supply chain. That means that steps will likely be necessary to ensure that the crops will still meet requirements imposed by certain buyers such as the European Union and China. Without those steps, U.S. farmers could face problems in maintaining access to those markets. Another potential problem could arise if the holder of the expired patent develops and markets a new product that could potentially compete with the product for which the patent has expired (the so-called generic product).

The patent expiration of the first generation of RR soybean trait in 2014 will be the first time that a major biotech trait will become potentially subject to competition with generic traits. That could result in lower prices and more choices for farmers. That will most likely be the case if Monsanto sticks to its pledges to maintain and extend current licensing agreements and regulatory approval for overseas markets.

Certainly, Monsanto has legal options that it can utilize to extend its existing monopoly and prevent competition among generic seed products. It appears at the present time that Monsanto does not plan to utilize those options to the extent of diminishing competition in the seed market. But, this entire matter is one that is developing.

A complete brief on this topic is posted on the Center for Agricultural Law and Taxation website as an April 8, 2011 —  Expiration of Biotech Crop Patents — Issues for Growers. This article looks at the laws governing seed sales and the current landscape.



Roger McEowen is the Iowa State University Center for Agricultural Law and Taxation director and an agricultural law professor. He can be reached at mceowen@iastate.edu or 515-294-4076.


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