Promoting Fair Competition and Innovation in Seeds and Other Agricultural Input Industries

On July 9, 2021, President Biden issued a historic Executive Order titled “Promoting Competition in the American Economy,” which creates a whole-of-government approach to competition and includes initiatives across federal agencies to tackle some of the most pressing issues across our economy. Among other things, the Executive Order directs the Secretary of Agriculture, in consultation with the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, to submit a report to the Chair of the White House Competition Council on concerns and strategies for ensuring “that the intellectual property (IP) system, while incentivizing innovation, does not also unnecessarily reduce competition in seed and other input markets beyond that reasonably contemplated by the Patent Act.”

As a response to the Executive Order, on March 17, 2022, the USDA-AMS launched a request for public comments and information that included 25 multi-part questions about competition and market power, intellectual property, and other business practices in the seed industry that might be affecting the American farmer’s ability to participate in a fair and competitive market. After a 90-day comment period, we (USDA staff and cooperators) collected comments, hosted a public listening forum,  and heard from an array of interested parties to ensure that as many perspectives as possible were represented in this report.

On March 6, USDA published this report, which represents its findings and recommendations. Altogether, this report reflects significant consultation across USDA offices and mission areas and with U.S. Patent and Trademark Office’s Director and staff, U.S. Department of Justice Antitrust Division, and the Federal Trade Commission.

  • Many commenters expressed concerns about difficulty in accessing information on existing IP rights and the application of patentability standards in examining plant-related innovations.
  • Commenters raised concerns with how IP rights for plant-related inventions are being used and enforced, noting the growing use of licenses that override research and breeding exemptions guaranteed by certain types of IP rights.
  • Commenters that primarily license IP from larger firms were concerned about the effects of consolidation on their choice products and the competitive market environment.
  • Finally, many commenters called for greater investment in public infrastructure around seed systems and plant breeding.

This report defines three key topic areas key topic areas in which the Executive Order’s “whole of government” approach to promoting competition can be used to address these challenges:

  1. Ensure robust and reliable IP rights that enhance innovation and promote competition
  2. Ensure that IP owners exercise their rights within the scope of fair competition provided by law, and
  3. Rebuild critical national infrastructure for variety development and the provision of seed and other planting stock to create resilient seed supply chains.

To deliver on its recommendations, USDA will:

  • Stand up a new Farmer Seed Liaison. The Seed Liaison will serve a key need expressed by breeders, farmers, and industry, to coordinate information sharing and reduce confusion for all parties to successfully operate in a complex seed system.
  • USDA and the U.S. Patent and Trademark Office (USPTO) will form a Working Group on IP & Competition in Seeds and Other Agricultural Inputs, where USDA and USPTO, together with Department of Justice and the Federal Trade Commission, will work together to promote fair competition in the seed market.
  • As part of USDA’s ongoing efforts to enhance transparency for farmers, AMS issued a Notice to Trade regarding compliance with disclosing the kind and variety under the Federal Seed Act. The Notice underscores that farmers and seed businesses should know the kind and variety that they are getting from the label and as advertised, not just when they receive it. USDA will also expand its portal to enable farmers and seed businesses to report tips and complaints related to seed markets. Report a tip or complaint.

View the ​​​USDA Fair and Competitive Seed Report (pdf)