In 'Technological Change and the Design of Plant Variety Protection Regimes', Mark Janis and Stephen Smith make two novel and provocative claims. They first argue that the legal regime for protecting new plant varieties has become hopelessly outdated in light of recent changes in technology. They next assert that the fate of the plant variety protection (PVP) system illustrates a broader and more disturbing phenomenon in intellectual property law: the potential for sui generis, industry-specific intellectual property regimes to become increasingly ineffective over time. In this brief essay, I offer three points to amplify the authors' contributions and highlight the legal and political consequences of the arguments they advance. I first discuss plant breeders' rights as a distinct form of intellectual property protection. Next, I review the challenges to implementing the authors' proposal to replace existing PVP rules with unfair competition principles. Third and finally, I consider the extent to which the obsolescence of plant breeders' rights represents a phenomenon that exists in intellectual property systems more generally.
Laurence R. Helfer, The Demise and Rebirth of Plant Variety Protection: A Comment on Technological Change and the Design of Plant Variety Protection Regimes, 82 Chicago-Kent Law Review 1619-1626 (2007)