Legal Constraint of Genetic Use Restriction Technologies

Abstract

Recent advances in genetic technology now allow seeds to be designed so that germination will occur only under the influence of proprietary chemical activation. These genetic technical protections, known as genetic use restriction technologies, or GURTs, hold the potential to suppress unauthorized uses of proprietary plant varieties. These systems may be used either in conjunction with or in replacement of so-called "seed-wrap" licenses, which purport to restrict the uses of proprietary seed after sale. Intellectual property rights including Plant Variety Protection and utility patents may form the basis for such licenses. However, license-based restriction of seed usage may be difficult or costly to police and to enforce. Technical restrictions are largely self-enforcing, but when used in to restrict seed usage may effectively confer greater rights than would be afforded by the relevant intellectual property statute. Such application of GURTS raises a series of troubling policy problems. Employment of GURTs and related licenses in such strategies also implicate competition doctrines including tying, exhaustion, and misuse. While the United States Supreme Court and the Federal Circuit have addressed some of these issues in the seed licensing context, the reasoning of the relevant opinions lacks coherence, and substantial questions remain regarding the application of these decisions to technological controls.

Keywords: GURTs, seeds, intellectual property, PVPA, patents, trade secrets, licensing, Terminator, bag-tag, seed-wrap

JEL Classification: H41, K12, O31, O34, O18