Farming & IP

With rising energy costs throughout the world, soaring food prices, global warming and the continuing conflict in Ukraine, the impact on agriculture and food production is profound.

As food production is so fundamentally important, mankind has for centuries sought to improve farming methods and increase yields.

For example, the invention of the hydroponic system (a type of horticulture where plants are grown in nutrient-rich water, without the use of soil) goes back to the 1500s with Dutch inventor Cornelius Drebbel. A modified version, using a nutrient solution to feed the plants followed in the late 1600s with Augustin Jabin.

Nowadays commercial growers of salad vegetables and soft fruit utilise the hydroponic method of cultivation to produce high quality yields.

In the move from sacrificing live animals to sate rain gods to the use of artificially intelligent robotic farming apparatus, improvements in farming methodology and equipment have been supported by Intellectual Property (IP).

In 1537 a letters patent was granted by King Henry VIII to Antonio Guidotti, a Venetian silk merchant to provide a 20 year monopoly in relation to growing silk in England.

More recently, in 2021, a farming machinery case made it to the UK courts. In the case of Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1007 (IPEC) questions arose as to the disclosure of an invention prior to the filing of the relevant patent application.

Unfortunately for the patent owner, while testing a prototype of their new seed drill in their field any pedestrians could theoretically have seen the machinery from a nearby footpath and understood the invention. Thus the patent was held to be invalid for lack of novelty.

Although in line with established caselaw, the Claydon case highlights both the importance of maintaining confidentiality of an invention before filing a patent application, and the difficulties of testing large items of machinery whilst doing so (beware of imaginary members of the public peeping through hedges).

Alongside farming machinery, biotechnology plays an important role in increasing crop yields, although the number of relevant patents filed is perhaps surprisingly low.

According to a 2020 report by the European Patent Office (EPO) biotechnology patents comprise 4% of total patent applications filed at the EPO, with agriculture-related patents making up only around 4% of this group. View the full report here.

As noted in the EPO report, plants themselves can be patentable, and around 400 patent applications are received by the EPO each year for such subject matter.

As with any type of invention, in order to be patentable a plant has to be new and inventive. Usually it is plants that have been cultivated to imbue them with favourable characteristics, for example in terms of drought and pest resistance, that are considered patentable.

Whilst much IP in relation to agriculture relates to improvements to existing technology, some entirely new farming technologies are emerging, such as a vertical farms.

The general idea of vertical farming was ridiculed by Brass Eye in 1997, but the concept has gained some traction in recent years. See for example US patent no. 8533993 for a “modular vertical farm cell” granted in 2013.

The principle aim of vertical farming is to produce food more efficiently and sustainably. Crops are grown indoors (often in old, disused factories) in giant trays stacked on top of each other, under artificial UV light where temperature and humidity is maintained at optimum levels and a closed loop system re-cycles the water.

This controlled indoor environment bypasses the need for pesticides as the space is completely enclosed and free of outdoor pests and disease. Although not viable for growing arable crops such as wheat and barley, it is proving to be a successful, cost-effective method of cultivating salad crops and greens and soft fruit such as strawberries.

A vertical farm in New Jersey, USA is said to be the largest of its kind in the world. From the outside it looks like a giant warehouse but within the walls is a fruit and vegetable emporium.

Where farming traditionally focused on mechanical tools and hard labour on the land, many new farms have now embraced hi-tech. Substitute LED lights for sunshine and robots for people. Data processing systems on a massive scale have replaced the farmer’s job of keeping an eye on the weather.

Artificial Intelligence (AI) is predicted to play an increasingly important role in agriculture, with so-called ‘agbots’ already starting to autonomously tend crops. However, as with any AI technology the risks will need to be questioned.

A recent report in the journal ‘nature machine intelligence’ highlighted potential threats in reliance on such technology in farming, in particular the threat of hackers jeopardizing food production.

It is perhaps inevitable that there will be a certain unease created by replacing traditional farming techniques with robots. The spectre of swarms of bee-like drones to replace living insects should unsettle even the most enthusiastic technophile.

However, adoption of most new technologies is not without some risk, and history has proven that it is scientific research backed with IP that will improve agricultural production in the future.