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Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School. ��

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I wouldn’t consider myself to have a “green thumb” or have been born with plant parent instincts. Rather, it’s taken various (unsuccessful) experiments with succulents, cacti, annual and perennial flowers, and lush tropical plants to learn how to not��lovingly flood them with water, despite my best intentions. Fast forward to the present; moving to Ontario for law school meant that I had to entrust my plants to my brother, who made it quite clear that he didn’t know what he was doing. Moving into my dorm at Osgoode was even more exciting when I realized I could welcome some new sprouts and furnish the space accordingly. I was also excited to continue experimenting with plant propagation.��

You can imagine my surprise when I��read the��words “” or “ prohibited” in all capital letters, bolded, and printed on the plastic care and instruction tags attached to my newly acquired plants. With a few weeks’ worth of law school, Google, and a healthy dose of procrastination, I went down a rabbit hole of plant patents and breeders’ rights to see if I could be fined or arrested for propagating some of my pothos . Coming out at the other side of that late-night exploration, I’m reassured that plant enthusiasts, users, and��budding plant parents like me��will not��face��grave repercussions.��Below, I��present��some preliminary��findings and��point out��further��resources��that may interest readers.����

In Canada,��protection of plant varieties and�� (“PBRs”) fall under the scope of the , which was revised in 2015��to adopt the��widely recognized����PBRs��are not patents, but a lower-cost, more accessible mode of protecting��legal��rights without��seeking exclusive��ownership��of��a "higher life form."��In Canada,��as held by the Supreme Court in the now-famous�� case, the only patentable organisms are those categorised as "lower life forms" which include unicellular organisms (e.g. bacteria), cell clusters (moulds and yeast), and (merged cell lines used to test for the presence of antibodies during an induced immune response). Although the U.S. allows entire plants to be patented, Canada does not. In ,��the SCC outlines a clear distinction between the uniqueness of a plant (potentially PBR eligible) versus the innovative production or technique associated with the life form (potentially patentable).��

PBRs��provide��legal protection in��the����they are granted in,��allowing��holders��to receive royalties��and control��any operations involving their protected variety.��This��includes��processes��like the production, sale,��and��imports/export��of the plant variety.��In order to be��eligible for protection,��potential plant candidates��must be�� Candidates are published in the Canadian government’s����and held to��industry scrutiny.��If there are no objections��after six months,��the plant��becomes eligible for PBRs.��

The 2015 revision to the��Plant Breeders’ Rights Act expanded the scope of rights that PBR certificates grant��, among others.��

Why are PBRs important?��In our��ever-changing economy, growing population,��and��global��climate, it can be��said that it is in humanity’s��best interest to protect plant varieties and promote��agricultural innovation—not only to address��the realities of��climate change, but to��. Suppose a new variety of wheat is more drought-resistant than existing plants. Among other , this characteristic would be especially useful for farmers and food systems, as —including��in��—become more extreme over time��due to��, which ultimately affects crop yield and quality. SME farmers in other countries also benefit from having an increased market of possible seeds to grow, ��

As a final thought, I want to revisit the premise of this article. Propagating pothos or monstera cuttings for personal, non-commercial use, despite infringing on PBRs, will very likely not land you in jail, nor saddle you with a hefty fine. The onus of enforcing PBRs rests on the holder, and the likelihood of plant breeders enforcing their rights on the everyday plant parent (assuming their propagation has negligible or uncompetitive effects on the larger commercial market) appears extremely small. However, propagating protected plants (especially crop varieties), even for personal uses such as gifts or home gardens, bars plant breeders from collecting the full amount of the royalties they are entitled to and reducing resources that could be used toward future innovation. If you have the resources to do so, consider purchasing individual plants in support of local farmers and plant breeders, or at the very least, check the plant tag for any trademark symbols, notices prohibiting reproduction, or indications that the plant in question is legally protected before you propagate it.���� ��

Further reading:����

The Canadian Food Inspection Agency’s “Guide to Plant Breeders’ Rights in Canada”: ��

The Canadian Food Inspection Agency’s database of registered crop varieties in Canada: ��

Impact Assessment��of��plant variety protections in Vietnam, a decade after UPOV membership:������

A comparison between U.S. and Canadian frameworks of patents and plant breeders’ rights: ����

The World Intellectual Property Organization's look at��existing supports��for��enacting��UPOV��policies, and the potential to��facilitate��sui generis��plant protections:����

Comparing plant variety protections in all African World Trade Organisation member countries:

For those looking for plant care tips:����

Plant Kween, a Black queer femme plant influencer whose tips for indoor plant care helped me: ��

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By most if not all - ()()(), the Court showed little sympathy for Bowman's position, appearing prepared to uphold in favour of Monsanto and patent rights-holders. While one could not contradict the Court on applying current law, there seemed to be an unacknowledged tension running through the hearing, between applying the law as it is and questioning what it ought to be in the face of unprecedented situations in patent law and related intellectual property issues.

I. Prologue: “Two parties, unalike in privity...”

Enter the facts. Monsanto sells certain types of soybean (and other) seeds with a patented gene that makes them resistant to Roundup, a Monsanto herbicide. Farmers who buy seeds from Monsanto must sign a contract binding them to using the seeds only once; they cannot plant seeds descended from the bought seeds. However, Monsanto allows farmers to sell, under no special conditions, descendant seeds to grain elevator mixtures. Bowman bought and planted such a mixture and harvested seeds from the plants that survived Roundup spraying, which indicated they were resistant.

The central issue of the case is whether or not Bowman planting descendants of the original seeds he bought constitutes patent exhaustion. Does Monsanto's patent reside only in the first generation of seeds sold to farmers, or does it reside in all seeds with the Roundup-resistant gene, including those grown into existence after sale?

II. Submission for Monsanto: “Justice! the law! my dockets, and my patents!”

Monsanto argues that if withers with the first sale of seeds alone, then the patent would quickly cease to have effect as all buyers could easily grow their own seeds from saved ones every year, instead of having to buy more from Monsanto. This, Monsanto contends, would “devastate innovation in biotechnology”. According to Monsanto, patent exhaustion does not include a right for the buyer to make unlimited copies of the sold item. Intervenors such as the added that patent exhaustion does not apply at all, as the new seeds are “new articles of manufacture”.

At the hearing, the justices raised challenges such as whether a Monsanto-favouring decision would have “the capacity to make infringers out of everybody”, due to the fact that Monsanto holds a near-total monopoly over soybean seeds, and due to events such as patented seeds into the fields of other farmers. The latter issue is particularly in light of .

III. Submission for Bowman: “Fare you well; your suit is cold.”

According to Bowman, Monsanto's first sale of the seeds exhausts the patent, and that's all there is to it; the buyer may do anything they like with the item after that. In perhaps a patent version of the thin-skull rule (obvious foreseeability notwithstanding), Bowman's argument implies that it's simply unfortunate Monsanto's patent happens to reside in something that is self-replicating and thus patent-undermining ; that is the liability one assumes with living organisms. Both Bowman and Monsanto claim that the other is asking the Court to carve out an exception in their favour.

Counsel for Bowman received a , with the justices actively putting him on the defensive regarding issues such as: the potential destruction of Monsanto's and similar patents flowing from a decision for Bowman; the inadequacy of contracts to replace patent protection; farmers' rights (or lack thereof) to exploit the self-replicating nature of seeds to go around Monsanto's patent; how frequent a practice it is for farmers to use grain elevator seeds for crops (and thus how severely an adverse decision would impact them); and whether or not counsel was mischaracterizing Monsanto's claim.

IV. Epilogue: “The course of true law never did run smooth.”

As mentioned, this case has the potential to set off trajectories in IP law far beyond what farmers may do with soybean seeds, and perhaps calls for more than straightforward application of existing law. First, the tellingly acted as intervenor for Monsanto, fearing a decision for Bowman could set a precedent applicable to and copyright. Multiple parties strengthened this nexus by citing ��(about making disk copies in a jurisdiction abroad),��and some have extended this connection to include cell lines and DNA used in medical research, not to mention .

Second, Monsanto argued that “size has never been thought to affect the contour of patent rights”. With anti-competition concerns such as and , however, the Court might consider whether size should, in fact, matter. Urgency arises in view of the fact that 93 percent of American-farmed soybeans (along with nearly 90 percent of both cotton and corn) were genetically engineered in 2010, according to a by , intervenor for Bowman.

Third, the justices consistently challenged Bowman on the idea that biotechnology patents should be exhausted on first sale in the case of ��. Justice Ginsburg asked, “Where is that in the law?” The problem here is that with the biotechnology in question, self-replication is the biology, not the technology; Monsanto did not invent photosynthesis. Current patent law as the Court seems poised to interpret it, however, treats the seeds and buyers as if Monsanto did.

Justice Ginsburg is correct in that Bowman's position is not in the law—and perhaps it . We can only hope that after having ��the various high stakes involved, the Court will hand down a decision that more fully speaks to the of whether or not, and how, it ought to be.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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