Georgetown Law
Technology Review

Amid escalating threats to global food security and ecological stability, the intellectual property (“IP”) regime governing genetically modified crops risks undermining the agricultural resilience it was designed to advance. Congress should consider adjusting the balance between providing innovation incentives through IP rights and facilitating greater access to plant diversity. This can be achieved through more stringent patent eligibility standards, compulsory licensing, or expansion of the “farmer’s privilege.”

Biodiversity and Food Security

Around 75% of the world’s food is produced from twelve plants. Patented genetically modified versions of four of those—corn, wheat, rice, and soybeans—have decreased genetic diversity by discouraging or preventing farmers from seed-saving. Seed-saving is a traditional method of increasing biodiversity by saving the strongest seeds that have adapted to a particular microclimate. This approach helps crops adapt to environmental changes and prevents mass devastation from a single threat. By contrast, genetic uniformity resulting from multinational seed firms holding rights to a large share of the global seed supply increases our vulnerability to widespread crop failure, heightening the risk of a global food crisis.

At the same time that biodiversity is declining, global population growth is expected to require a 70% increase in agricultural productivity by 2050. Genetically modified crops have been proposed as a means of increasing production sustainably by addressing challenges such as erratic climates, emerging pests and diseases, and other agricultural stresses that are likely to intensify.

Intellectual Property in Plants

New Genomic Techniques (“NGTs”) are methods of genetically modifying organisms. They allow plant breeders to develop new traits quickly and precisely, in contrast to conventional breeding techniques. Consequently, NGTs can address food security concerns by reducing the need for pesticides or fertilizers and increasing resistance to disease and drought. However, overlapping IP rights for genetically modified plants can operate in an overly restrictive manner by limiting access for farmers, placing smaller breeders seeking to develop new varieties at a disadvantage, and restricting independent scientific research into the public health and environmental effects of genetically modified plants. In the U.S., breeders may obtain plant patents and utility patents from the United States Patent and Trademark Office (“USPTO”) and plant variety protection certificates from the United States Department of Agriculture (“USDA”).

Regulating Genetically Modified Plants

In December 2025, the EU Permanent Representatives Committee endorsed a proposal to exempt NGT plant varieties with minor differences from conventionally bred plants from the EU’s genetically modified organisms (“GMO”) regulations. The Committee sent the proposal back to the EU Parliament for approval. A proposed, and highly contested, blanket ban on patenting NGT plants was ultimately withdrawn. The new proposal subjects NGT plants exempt from GMO regulation to transparency guidelines, including a public declaration of willingness to license NGT plants on fair and reasonable terms, and a sustainability monitoring program.

The EU proposal’s policy choices can inform the U.S. approach, and Congress now has an opportunity to address the issues highlighted by NGTs. The 2018 Farm Bill, which authorizes USDA programs including implementation of the Plant Variety Protection Act (“PVPA”), is expiring in September 2026. And the Patent Eligibility Restoration Act (“PERA”), introduced in 2025, proposes to expand patent eligibility, including for genetically modified plants, by eliminating judicially created exceptions. While a patent ban would be counterproductive by removing a key incentive to innovate, Congress should take this opportunity to strike a different balance than the EU by favoring greater access to patented plants over restrictive plant variety protection.

Possible Solutions

Given the imbalance created by overly protective IP rights for plant varieties and the urgent need for climate resilience and reliable food production, it is imperative that Congress recalibrate its approach. I propose three options for ensuring food security and biodiversity by increasing access to plant diversity while maintaining appropriate innovation incentives.

First, the most practical option would be to clarify eligibility guidelines for patent and plant variety protection of genetically modified plants. Patent quality is a widespread problem: wrongly granted patents can discourage innovation by harming small businesses and farmers who cannot afford to challenge invalid patents. Rather than restricting patent exclusions as PERA proposes, Congress should amend the Plant Patent Act and the PVPA and direct the USDA and USPTO to issue regulations clarifying the standards of novelty, non-obviousness, and distinctiveness. These standards should require more stringent investigation into prior art, information publicly disclosed prior to the patent filing which forms the basis for novelty and non-obviousness. Stronger standards are particularly important given that seeds have been selectively bred for thousands of years. Although relatively easy to implement prospectively, this approach would do little to address the harms that existing patents pose to food security and biodiversity.

A second option would be to institute a compulsory licensing system, potentially on a global scale, with the flexibility to adapt to agricultural crises. Congress would provide the basic infrastructure for this system, which would be implemented as crises arise. This would streamline access to essential plant varieties during climate disasters or other ecological threats, consequently increasing yields and mitigating food shortages. Under such a framework, certain plant varieties would be subject to statutory compulsory licenses authorizing farmers to license seeds without the rights-holders’ prior consent. These plant-variety licenses would have graduated licensing costs to compensate the rights holders based on the current environmental and economic conditions of the agricultural sector. Additionally, these licenses would be granted on fair and reasonable, non-exclusive terms, thereby balancing farmers’ access to essential seeds and broader food-security and biodiversity concerns with the rights holders’ ability to recoup their investment in research and development. Similar systems have been used internationally in the pharmaceutical context to address public health crises, such as the COVID-19 pandemic. During COVID, many countries invoked the public health emergency to allow their governments to license patented medicines without prior authorization from the patent holder to facilitate broader distribution of those vaccines and treatments to patients.

Third, a more expansive, though potentially more controversial, proposal would expand the “farmer’s privilege” exemption. Both the International Union for the Protection of New Varieties of Plants (“UPOV”) Convention and the PVPA recognize a limited privilege allowing farmers to save seeds for use on their own farms. However, both regimes prohibit the sale of saved seeds to other farmers or for reproductive purposes. The international community has already recognized the importance of expanding farmers’ rights in the International Treaty on Plant Genetic Resources for Food and Agriculture, and Congress should do the same. Under this proposal, the exemption would be expanded to allow limited exchange of saved seeds between neighboring farmers to encourage development of plant varieties adapted to specific microclimates. U.S. patent law should also be amended to codify a farmer’s privilege explicitly, overruling court-imposed limits on the first sale, or patent exhaustion, doctrine for self-replicating technologies. Without the benefit of the patent exhaustion doctrine, farmers cannot reproduce patented plants using saved seeds without the patent holder’s permission. A statutory provision allowing seed-saving, commonly referred to as the farmer’s privilege, is therefore necessary. Yet the farmer’s privilege can be a double-edged sword: excessive unlicensed use could reduce incentives to develop new plant varieties. To mitigate potential harm to innovation, the privilege should be limited to certain staple crops that are essential to food security and conditioned on reasonable use restrictions that prevent farmers from becoming competitors of seed firms and plant breeders.

Congress should first implement stronger patent eligibility standards for novelty, non-obviousness, and distinctiveness to prevent low-quality patents. Because expanding the farmer’s privilege is a more ambitious proposal, a combination of heightened patent eligibility standards and a flexible compulsory licensing system is Congress’s best course of action right now. Together, stronger patent eligibility standards and compulsory licensing would balance incentives to innovate new plant varieties with broader access to those innovations, creating an immediate and workable regime to address existential threats to biodiversity and food security. The farmer’s privilege expansion can be implemented as a long-term solution complementing the first two proposals.