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Corteva files suit against Inari for using seed deposited with the ATCC to create GE versions of Corteva’s varieties

If you have been to a meeting related to plant IP rights in the past couple years, I am sure you’ve heard some heated debate about genetic editing (GE) (especially using CRISPR-Cas technology), essentially derived varieties (EDVs), and plant variety rights. 

As more companies have begun to use genetic editing as a tool for creating new versions of existing varieties, a huge debate has been brewing about whether the resulting GE varieties are new varieties, EDVs, or just part of the same variety. 

For example, do you create a new variety when you take an existing variety and use GE to make it more resistant to a particular type of disease, such as powdery mildew? Or does that create an EDV? Or is the resulting plant still a version of the original variety? Depending on whether you are using GE to modify other breeders’ varieties or are one of those other breeders (or both, in some cases), you may be on one side of this debate or the other.

Corteva has now filed a lawsuit that may begin to provide answers to these questions. Corteva Agriscience LLC, et al. v. Inari Agriculture, Inc. et al., was filed on September 27, 2023, in the federal District Court in Delaware (complaint linked below). Corteva alleges that Inari improperly took seed that Corteva had deposited with the ATCC (in order to obtain its patents), exported that seed, and then used it to create GE versions of those varieties. ATCC, or the American Type Culture Collection, is a nonprofit organization that collects, stores, and distributes standard reference microorganisms, cell lines and other materials for research and development purposes.

In addition to possibly shedding some light on the GE/EDV/variety rights issue, this case also should shed some light on the important question of what a third party can do with seeds that they obtain from a seed deposit that a variety owner made in order to secure patent protection.

There are many facets of this case, so it will be interesting to watch it unfold and see what type of clarification it can provide for some of these important issues. Panitch Schwarze’s attorneys will be monitoring this case and its impacts carefully.

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