In this paper, we examine the potential for plant variety protection ("PVP") regimes—that is, sui generis, industry-specific intellectual property regimes—to become compromised as a result of technological change. In particular, we analyze the shift in plant breeding from phenotypic selection to genotypic selection, and consider the impact of that shift on existing plant variety protection. We also lay out an alternative structure for plant intellectual property protection based on unfair competition, a model that differs radically in some respects from current PVP schemes. We offer our model as a starting point for debate on adaptations that might improve PVP schemes, whether those adaptations be systemic or (more likely) incremental changes to existing rules and practices.
Mark D. Janis & Stephen Smith,
Technological Change and the Design of Plant Variety Protection Regimes,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss3/17