Developments in Agricultural Biotechnology

William Mitchell Law Review, Dec 1993

By Keith D. Parr, Published on 01/01/93

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Developments in Agricultural Biotechnology

Developments in Agricultural Biotechnolog y Keith D. Parr Recommended Citation Parr: Developments in Agricultural Biotechnology KEITH D. PARRt I. INTRODUCTION Significant advancements are being made in agricultural biotechnology.' New advancements in genetic engineering and testing methods have resulted in easier identification of different plant varieties and have promoted the development of transgenic plants and animals. 2 The intellectual property t Partner, Lord, Bissell & Brook, Chicago, Illinois. 1. Biotechnology is "any technique that uses living organisms (or parts of organisms) to make or modify products, to improve plants or animals, or to develop microorganisms for specific uses." JACK R. KLOPPENBURG, JR., FIRST THE SEED: THE POLITICAL ECONOMY OF PLANT BIOTECHNOLOGY 1492-2000 (1988) (using the Congressional Office of Technology Assessment's definition of biotechnology). 2. A transgenic plant is "a plant which is transformed when a gene taken directly from another plant or organism is physically inserted into it." John Schoenemann, TransgenicPlants May Be In Your Future,AMERICAN VEGETABLE GROWER, William MWitIcLhLelIlALMaw RMeIvTieCwH,VEoLl.L19L,IAssW.2 [R19E9V9I],EAWrt. 8 rights in the new processes and products of biotechnology can be protected. For example, plants are now subject to general utility patent, as well as Plant Patent Act, Plant Variety Protection Act, and trade secret protection. Courts have recently decided several important cases pertaining to the protection of plant varieties and processes. Government regulation of agricultural biotechnology continues to be an area of uncertainty. Although the United States Department of Agriculture, the Environmental Protection Agency and the Food and Drug Administration all have a hand in the current regulatory structure, the agencies' individual roles have not been well defined. The new administration, particularly Vice-President Albert Gore, has expressed an interest in reviewing the existing regulatory framework and potentially proposing changes in the present regulatory scheme.4 This Article will discuss recent developments in agricultural biotechnology. Additionally, the Article will discuss the applicability of patent and trade secret protection to agricultural developments and current government regulation of agricultural biotechnology. Finally, the Article examines the subject of future regulation. A. Animal Biotechnology Developments in animal agriculture are proceeding at a somewhat different pace than developments in plant biotechnology.5 Desired changes in animals can still be made relaAug. 1992, at 21-22. See also Boyee Rensberger, Technique May FightDisease by Reversing Instructions to Cells, WASH. POST, Jan. 4, 1993, at A3 (containing a description of how a transgenic plant is formed). 3. See infra Part III.B. 4. Vice-President Gore has shown a great interest in the subject during his terms in the Senate and in the House. In his recent book, Vice-President Gore proposed the development of a Strategic Environment Initiative to discourage and phase out older technologies. Gore also called for the development of a new generation of environmentally benign substitutes. AL GORE, EARTH IN THE BALANCE 140, 319 (1992). See also Alex Barnum, Biotech Poses Key Testfor ClintonAdministration: New Leadership Faces a Balancing Act Between the Environmentaland High-Tech Sectors, SAN. FRAN. CHRON., Jan. 4, 1993, at BI (discussing possible action of Clinton administration in biotechnology industry). 5. John M. Czarnetzky, Altering Nature's Blueprintfor Profit Patenting Multicellular Animals, 74 VA. L. REV. 1327, 1329-30 (1988). 1993] PAarGr:RDIeCvUeloLpTmUeRnAtsLin BAIgOriTcuEltCuHraNlBOioLtOecGhnYology tively quickly through conventional breeding and selection techniques. 6 In just a few years, size, muscling, and conformation traits can be bred into large numbers of animals to significantly alter the attributes of any breed. While advancement in the genetic engineering of animals has not yet progressed to the levels achieved in plant research, transgenic animals are on the horizon.7 Ethical concerns that have slowed the short term progress may continue into the near future.8 Among these ethical concerns are human control of life, maintenance of species integrity, and economic equity. 9 Because many of these arguments predate patenting animal technology it is unclear what, if any, new issues patenting will add to these ethical concerns.' 0 B. Plant Biotechnology 1. Identification and Labeling of Plant Varieties The identification and labeling of plant varieties is an important issue for the seed industry, the government, and farmers."1 Proper labeling is essential to maintain fair competition and to prevent misrepresentation of seed varieties.12 The Federal Seed Act, enacted in 1939,'1 and regulations promulgated under the Act,' 4 require labeling by varietal name. These regWilliam MWiItLchLeIllALMawMReIvTieCwH,VEoLl.L19L,AIsW (...truncated)


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Keith D. Parr. Developments in Agricultural Biotechnology, William Mitchell Law Review, 1993, Volume 19, Issue 2,