The Fair Seeds for Farmers Act: Congress Takes Aim at Utility Patents and Seed-Use Restrictions

‍On July 14, 2026, Representatives Jim McGovern (D-MA) and Greg Casar (D-TX) introduced H.R. 9681, the Fair Seeds for Farmers Act. At four pages, the bill is compact but potentially consequential. Although the sponsors describe it principally as a measure to curb utility patents on seeds, the operative text is broader: proposed Section 33A(a)(1) would provide that no protection may be provided under any federal law "with respect to" a plant, plant variety, or plant germplasm except under the Plant Variety Protection Act (PVPA) or the Plant Patent Act of 1930 (PPA). The bill would also make specified restrictions in agreements entered after enactment unenforceable. Existing issued patents and agreements entered before enactment would not be directly affected by the bill's effective-date clause.

For patent and licensing practitioners, the central issue is therefore not simply whether the bill would end utility patents on whole plant varieties. It is how far the phrase "with respect to" would reach. Would the bar cover only claims directed to plants, varieties, and propagating material, or would it also reach claims to genes, traits, edited sequences, plant cells, constructs, plant parts, or breeding and transformation methods? The text does not say. That ambiguity matters because current utility-patent practice extends well beyond claims to a named variety. This post reviews the existing framework, the bill's actual language, the interpretive questions it raises, and the portfolio and contract issues clients should be modeling now.

The Current Framework: Three Overlapping Forms of Protection

‍U.S. plant innovation currently sits within three overlapping federal regimes. Each protects a different category of subject matter, carries a different scope, and includes different limitations.

‍The Plant Patent Act of 1930 (PPA), codified at 35 U.S.C. Sections 161-164, protects a distinct and new variety that the inventor or discoverer has asexually reproduced. It excludes tuber-propagated plants and plants found in an uncultivated state. Plant patents use a specialized disclosure rule: under Section 162, the description must be as complete as is reasonably possible, and the application contains a single claim directed to the plant shown and described. The resulting right is tied to that plant and its asexual reproduction, rather than to every use of an underlying gene or trait. For this reason, the PPA has not been the principal protection vehicle for seed-propagated row crops.

The Plant Variety Protection Act (PVPA), 7 U.S.C. Section 2321 et seq., is administered by USDA's Plant Variety Protection Office and awards a Certificate of Plant Variety Protection rather than a patent. Current law covers sexually reproduced and tuber-propagated varieties and, following 2018 amendments, asexually reproduced varieties. That last category means the PVPA and PPA can now overlap for some asexually reproduced varieties. A variety must satisfy the statutory requirements of novelty, distinctness, uniformity, stability, and an appropriate denomination. The PVPA also contains two limitations that utility patent law does not: a research exemption permitting use of a protected variety for plant breeding or other bona fide research, and a saved-seed exemption permitting a farmer, subject to statutory conditions, to save lawfully obtained seed for replanting on the farmer's own holdings.

‍The third regime is the utility patent under 35 U.S.C. Section 101. In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124 (2001), the Supreme Court held that sexually reproducing plants can qualify as patentable subject matter and that the PPA and PVPA are not the exclusive federal mechanisms for protecting plant innovation. Utility patents may be drafted to cover genes, traits, methods, plant parts, or varieties, subject to the ordinary requirements of patent law. Utility patents do not carry any plant-specific statutory research exemption or seed-saving exemption. Seed companies have often paired those rights with technology-use agreements that restrict replanting, breeding, or research. In Bowman v. Monsanto Co., 569 U.S. 278 (2013), the Court held that patent exhaustion did not authorize a farmer to reproduce, plant, and harvest patented, self-replicating seed; the authorized sale exhausted rights in the particular seed sold, not in newly made copies.

What H.R. 9681 Would Actually Do

Structurally, H.R. 9681 is a two-section bill. It would amend the Leahy-Smith America Invents Act (AIA) by inserting a new Section 33A immediately after AIA Section 33. Existing Section 33 bars patents on claims directed to or encompassing a human organism; H.R. 9681 would retitle that provision to specify "for human organisms" and then add a separate limitation for plants. The bill does not rewrite Section 101 itself. Instead, it creates a categorical statutory bar through the AIA.

‍First, the federal-protection bar. Proposed Section 33A(a)(1) states that, notwithstanding any other provision of law, "no protection may be provided under any Federal law with respect to a plant, plant variety, or plant germplasm" except under the PVPA or PPA. Read in its patent-law context, that language would prevent covered pending and future utility patent applications from maturing into patents. But the words "any Federal law" are facially broader than patent law, and the bill does not define the phrase "with respect to."

Second, the contract-enforcement bar. Proposed Section 33A(a)(2) provides that no contractual obligation or agreement "that may be allowable under" the PVPA or PPA may be enforced if it limits use of a plant, plant variety, plant germplasm, or other biological material for research, breeding, experimentation, seed saving, or propagation. The provision does not say that an entire agreement is void. It makes the specified limitation unenforceable, and only for agreements entered into on or after enactment. On its face, it does not address unrelated pricing, payment, quality-control, stewardship, regulatory, confidentiality, or trademark terms, although the interaction between those provisions and the listed uses may become fact-specific.

Third, definitions. The bill defines "germplasm" as propagable plant material, including seeds, pollen, tubers, or rootstock, for use in breeding, conservation, or research. It defines "plant variety" using a formulation similar to plant-variety-rights statutes: a plant grouping within the lowest known botanical taxon that is distinguishable by at least one expressed characteristic and can be treated as a unit for unchanged propagation. The term "plant," however, is left undefined.

‍Fourth, effective dates. Section 33A(a) would apply to any patent application pending on the date of enactment or filed thereafter, and to any contractual obligation or agreement entered into on or after enactment. Issued patents arising from applications outside that rule would remain valid. The distinction is unusually important: a long-pending application could be affected, while a patent issued before enactment would be grandfathered.

The Most Important Drafting Questions

•        How broad is "with respect to"? A claim to a named seed or plant variety is the easy case. Claims to a trait, nucleic-acid sequence, edited locus, promoter, plant cell, transformation event, or method may be harder. Some of those claims can be practiced in plants but are not necessarily claims to a plant, plant variety, or germplasm. The bill does not establish a test for drawing that line.

‍ •        Why use "any Federal law"? The effective-date provision is written around patent applications, but the operative prohibition refers to protection under any federal law. That mismatch raises questions about whether the clause is intended to reach only patents or also other federal causes of action or exclusivities. A narrower amendment tied expressly to Title 35 would reduce that uncertainty.

‍ •        Which contracts are "allowable under" the PVPA or PPA? The quoted phrase is not defined. It could be read as limiting the provision to agreements associated with rights under those statutes, or more broadly as reaching seed-use restrictions generally once the protected subject matter falls under either regime. Renewals, amendments, click-wrap updates, and annual technology-use agreements could also raise questions about when an agreement is "entered into" for effective-date purposes.

‍ •        What remains protectable? The bill clearly preserves PVPA certificates and plant patents. It is less clear whether claims to enabling biotechnology that are not themselves directed to a plant, variety, or germplasm would remain available. That question will determine whether the proposal removes only one layer of variety protection or reaches much more of the agricultural-biotechnology stack.

‍J.E.M. and Bowman: A Prospective, Not Retroactive, Shift

‍The bill should not be described as "overruling" J.E.M. Ag Supply in the judicial sense. J.E.M. interpreted the statutes Congress had enacted; Congress may change those statutes prospectively. H.R. 9681 would therefore supersede the decision's statutory result for covered pending and future applications, while leaving the decision and existing issued patents intact. The practical change could still be substantial, but the mechanism is legislative withdrawal of protection, not reversal of the Court's judgment.

The same timing point matters for Bowman. Its patent-exhaustion holding would remain relevant to grandfathered utility patents for the remainder of their terms. For subject matter that could no longer receive a new utility patent, the decision would gradually become less important. Contract restrictions would follow a separate timetable: agreements entered before enactment would not be directly affected, while specified restrictions in new agreements could become unenforceable. The bill would therefore change freedom to operate incrementally rather than clearing the field on the date of enactment.

The Consolidation and Affordability Context

‍The sponsors frame H.R. 9681 as a response to concentration in the seed industry and as part of the Congressional Progressive Caucus's New Affordability Agenda. A one-pager and press release released about H.R. 9681 argue that broad patent claims and restrictive contracts have reduced farmer autonomy, limited independent breeding, and increased seed costs. The proposal has been endorsed by several groups, including the National Sustainable Agriculture Coalition, American Economic Liberties Project, National Family Farm Coalition, Organic Seed Alliance, Open Markets Institute, RAFI-USA, Farm Action Fund, Environmental Working Group, and others.

The concentration premise is supported by U.S. Department of Agriculture data, although how that concentration should be addressed is contested. USDA's Economic Research Service reported that Bayer and Corteva accounted for 72 percent of planted corn acres and 66 percent of planted soybean acres in the United States in 2018-20. In a related 2023 report, USDA found that Bayer, Corteva, and Syngenta, including their legacy companies, held 71 percent of the utility patents and 58 percent of the Plant Variety Protection Certificates in its dataset for new crop varieties. The same USDA research concluded that expanded intellectual-property protection helped stimulate private R&D and new varieties while also increasing market power and contributing to higher seed prices. The policy debate is therefore about where to set the balance, not whether intellectual-property rules have economic effects.

‍The affordability claim should also be framed carefully. Reducing seed-market concentration or licensing restrictions could lower some farm input costs over time, but any effect on grocery prices would be indirect and would depend on competition, crop economics, supply-chain contracts, and pass-through at multiple stages. It is more precise to describe lower food costs as a policy objective of the bill, not a guaranteed or immediate result.

‍A More Nuanced Global Comparison

‍The international comparison is more complicated than a simple "United States versus the rest of the world" distinction. The 1991 UPOV Convention harmonizes plant-variety rights; it is not a uniform patent code. UPOV Article 15 requires exceptions for private and noncommercial acts, experimental use, and breeding other varieties, and permits members to adopt a limited farm-saved-seed exception. Member states remain free to structure patent eligibility under their own laws, so UPOV membership alone does not answer whether plant-related utility claims are available.

‍Europe illustrates the distinction. Article 53(b) of the European Patent Convention excludes plant varieties and essentially biological processes from patentability. Yet European Patent Office practice permits certain technical plant inventions when the claim is not confined to a particular plant variety, subject to additional limits on products obtained exclusively by essentially biological processes. If H.R. 9681 were read narrowly to bar utility claims to particular plants or varieties, it would move U.S. practice closer to that model. If it were read to reach genes, traits, cells, or technical methods, it could go materially further than some foreign regimes.

Strategic Takeaways for Practitioners if Enacted

‍ ‍•        Audit claim sets, not just application titles. Identify pending claims directed to whole plants, seeds, varieties, germplasm, plant parts, traits, genes, cells, transformation events, and methods. The bill's effect may turn on claim language and category, not merely on whether an application sits in an agricultural portfolio.

‍ ‍•        Separate issued rights from pipeline risk. Issued patents would be grandfathered, while pending and future applications would face the new rule. Portfolio valuations, enforcement planning, and freedom-to-operate analyses should distinguish those buckets rather than treating all plant-related utility patents as equally exposed.

‍ ‍•        Build PVPA and PPA alternatives deliberately. PVPA protection now extends to sexually reproduced, tuber-propagated, and asexually reproduced varieties, but it requires novelty, distinctness, uniformity, and stability. Plant patents remain limited to qualifying asexually reproduced plants. Neither regime automatically substitutes for broad utility claims to traits or enabling technologies.

‍ ‍•        Review new and renewing agreements. The contract provision applies only to agreements entered after enactment, but clients should map how annual licenses, bag-tag terms, click-wrap updates, amendments, and renewals would be treated. Drafting should separate listed use restrictions from unrelated commercial, stewardship, and regulatory obligations.

‍ ‍•        Reassess freedom to operate incrementally. Independent breeders, universities, and public research programs could gain room to operate as pending applications fail to mature, patents expire, and new contract restrictions become unenforceable. Existing issued patents and pre-enactment agreements, however, would continue to require attention.

Where the Bill Goes From Here

As of July 17, 2026, H.R. 9681 has been introduced and referred to the House Judiciary Committee. No Senate companion, committee markup, or floor schedule was identified as of the date of this post. The bill is at an early stage and may be amended substantially. Even if this measure does not advance, its drafting approach is a useful signal: future plant-IP reform proposals may target both the patent and contract layers, and may apply to applications already pending on the date of enactment.

This post was written by Lisa Mueller