Q&A: 6 KEY TIPS ABOUT INTELLECTUAL PROPERTY RIGHTS

There’s a lot to think about for agrifood companies establishing new products or processes and farmers or researchers developing new crop varieties and seeds. There’s R&D, financing, collaborations, commercialization, production issues and more.

One area they shouldn’t overlook is intellectual property (IP) protection. It can be critical to the success of a project.

Especially now, when there is a lot of collaborative activity, both through public-private and private-private projects.

“Whenever collaboration happens, there are a lot of questions about IP,” says Kristal Allen, a partner with the Calgary law firm MLT Aikins, who specializes in technology and intellectual property management, particularly in the ag-biotech and crop sector.

“IP is, frankly, the issue people want to focus on the most.”

For plant-protein producers and processors seeking collaborative funding for their projects from Protein Industries Canada, having an intellectual property plan in place is a condition of receiving federal money, says Meghan Gervais, IP manager for the organization, which is investing more than $150 million into eligible plant-protein projects over four years. Five co-investment projects have been announced so far. “Intellectual property literacy is one of our priorities,” says Gervais.

“It can be an intimidating topic,” she adds. “Often companies are really great at what they do, but they haven’t had the opportunity to step back and look at what is unique about what they’re doing and how they might have to protect that.”

In the 15 years that Allen has been practising law, she has seen a significant increase in the focus on innovation in agriculture, as the sector seeks to feed more people using less land or land that is not ideal for production. Innovation means changing processes, inputs and equipment to produce better yields.

“People in the sector are thinking ‘if I put all this investment, time, money and effort into developing an innovation, how do I ensure that there’s going to be sufficient return?’ That’s where intellectual property protection comes in.”

Allen grew on a mixed dairy and grain farm in eastern Saskatchewan, has a BSc in agriculture from the University of Saskatchewan and previously worked as the in-house legal counsel for a multinational agribusiness. So she is comfortable helping participants in the food and agribusiness sector with their IP plans.

There are five main types of IP protection, explains Allen. Patents and Plant Breeders’ Rights are most commonly used in the agricultural sector, but others come into play as well.

Patents: Protect inventions, including new or improved machines, processes, compositions of matter, manufacturing techniques and in some cases software. A patent prevents anyone else from using the invention without permission for 20 years.

Plant Breeders’ Rights: Protects new plant varieties, in a similar way to patents, for 20 years, subject to certain exceptions set out in the Plant Breeders Rights Act.

Copyright: Protects original literary and other artistic works, including the code used to write computer software, and lasts for the author’s lifetime, plus 50 years.

Trademarks: Protects designs, logos and slogans that distinguish your product from other products in the marketplace, and are used to promote your product.

Trade secrets: Protects commercially valuable information that derives its value from being treated with secrecy. Unlike other forms of IP, trade secrecy is basically a do-it-yourself form of protection and does not involve a registration process.

Any grower or company undertaking R&D to develop a new seed variety or processing technique or new equipment is undoubtedly making a substantial investment of time and money, says Allen. They will want to recoup their investment by protecting that invention or the new crop or seed variety from being used by others without authorization and corresponding compensation.

Once they have IP protections in place, they will try to recoup some of the investment by charging a premium price or through licence and trade fees.

It’s always a good idea to talk to a lawyer early in the process, says Allen, perhaps even before you have something developed. That way, you can plan how you want to address issues with your collaborators – such as who owns the proprietary product, who is responsible for various aspects of its development, what non-disclosure or confidentiality requirements apply, and how commercialization will proceed.

“Instead, what often happens is that people will come to see me either mid-way through a project or after they’ve got some results, and then they are trying to figure out how to do something with those results, how to exploit them.” Sometimes they are limited in their commercialization options because they haven’t sorted out their collaboration structure and IP issues early enough in the process.

It’s also a good idea to see a lawyer early to determine whether the product or process you are developing is actually new to the marketplace. “Sometimes people put a lot of effort into developing something and then find out somebody else has already developed something similar, so that if they try to patent it, they might have great difficulty.”

IP protection also applies to users of agricultural and processing technology and equipment and proprietary seed varieties.

It’s important for farmers who buy seed to understand whether it is protected by Plant Breeders’ Rights or by patent. The protections are similar, but patents provide more fulsome coverage. For instance, a grant of plant breeders’ rights is subject to a exception known as “Farmers’ Privilege,” whereby a farmer who buys seeds covered by Plant Breeders’ Rights can save the propagating material produced from planting a crop to use that material on his own farm to grow a second generation of that crop the next year. This practice is not generally allowed with patented seed variety.

For agricultural processors, it’s important that they understand whether the processes and technology they use in their facilities are proprietary and, if so, do they need to pay licence fees or are there any restrictions on how they can be used? In many situations, the technology will be software-based, so there will likely be copyright restrictions.

Allen says today’s prairie producers and processors are well-educated and extremely knowledgeable about new production techniques, processing technologies and global markets. With this comes a basic knowledge of what intellectual property means and why it’s important to think about.

But most producers and processors don’t have a detailed understanding of the different forms of IP protection, when they are applicable and the nuances of what is required in their particular situations.

There is a tendency to share too much information publicly too soon, says Allen. “I get this completely, from a human nature standpoint. When you have a really good idea or you have developed something that is exciting and new, you want to shout it from the rooftops.”

But from an IP perspective, if you share too much about your idea or your early R&D results, you can significantly impact your ability to protect your invention or your development going forward. For example, once an invention has been publicly disclosed, it becomes very difficult or impossible to patent, because it has become part of the public domain.

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Kristal Allen gives occasional workshops on intellectual property protection, as does Protein Industries Canada. Although there are none scheduled at this time, Meghan Gervais of Protein Industries Canada expects her organization will be offering workshops to its members later in 2020.

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Written by: Keri Sweetman, an Edmonton-based freelance writer, and editor.

Published by: Plant Protein Alliance of Alberta