The Past is Prologue: Development of Proprietary Rights in Plant Varieties

Abstract

Because precedent is so important in legal thinking, the dead hand of the past nearly always plays a role in guiding the course of future developments in the law. This fact is no more starkly evidenced than in the evolution of law pertaining to proprietary rights in biotechnology. In light of the historical analysis in this and the next chapter, the unbiased reader may be excused for experiencing a distinct sense of deja vu. As we shall see, the dialogue currently ongoing worldwide over the appropriate proprietary vehicle(s) for plant-related inventions echoes a very similar debate that took place in Europe earlier this century. Moreover, the ‘resolution’ of that earlier controversy, based on considerations having little actual relation to patent law, lent a decidedly anti-patent caste, vis-a-vis biotechnology in general, to subsequent patent treaties that later became models for national patent laws in numerous countries.