Showing posts with label intellectual property. Show all posts
Showing posts with label intellectual property. Show all posts

Thursday, November 15, 2018

Agricultural Law Weekly Review—November 15, 2018


Written by: M. Sean High (Staff Attorney) and Deanna Smith (Research Assistant)
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Agricultural Labor: DOL Proposes Online Advertising Requirement for Temporary Labor Certification Jobs
On November 8, 2018, the U.S. Department of Labor (DOL) announced a proposal requiring that employers seeking temporary labor certification must fulfill advertising requirements through online methods.  Currently, employers seeking temporary labor certification through either the H-2A visa program or the H-2B visa program must publish two print newspaper advertisements “in the area of intended employment.” Under the new proposal, however, such newspaper advertisements will no longer be required.  Instead, advertisements regarding job opportunities for both programs will be required to be posted online for a minimum of 14 days.  According to DOL, the intention of the change is to modernize the recruitment process “and make job opportunities more readily available to Americans.” For information regarding changes to the H-2A program see 83 FR 55985.  For information regarding changes to the H-2B program see 83 FR 55977.

Animal Welfare: California Votes to Require More Space for Confined Farm Animals
On November 6, 2018, California voters passed Proposition 12 which establishes minimum space requirements farmers must provide for confined egg-laying hens, breeding pigs, and calves raised for veal.  Additionally, under Proposition 12, no California business is permitted sell eggs, pork, or veal that comes from animals confined in ways not meeting the new requirements.  Previously, in 2008, California passed Proposition 2 which mandated that confined egg-laying hens, breeding pigs, and calves raised for veal must be able to “turn around freely, lie down, stand up, and fully extend their limbs.” Proposition 12, however, now places confinement restrictions based on a minimum number of square feet and on sales.

Checkoff Programs: R-CALF USA Lawsuit Expanded to 13 More States
On November 5, 2018, a Montana Federal District Court Judge granted the Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America’s (R-CALF USA) motion to extend its beef checkoff program lawsuit beyond Montana to 13 other states.  Earlier this year, on April 9th, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the United States Department of Agriculture (USDA), preventing the continuation of the national checkoff program in Montana. (R-CALF USA v. Sonny Perdue, No. 17-35669).  In the lawsuit, R-CALF USA is claiming that the national check-off program is “violating the U.S. Constitution by compelling Montana cattle producers to pay for the private speech of the private Montana Beef Council without first obtaining consent” from its producers.  This new development does not extend the existing preliminary injunction in Montana to the other states, which are Hawaii, Indiana, Kansas, Montana, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin.  However, it allows R-CALF USA to continue with its original lawsuit that seeks a permanent injunction of the national checkoff program and allows individual cattle producers to decide whether half the mandatory assessments collected from them should be spent by the private state’s Beef Council, or all of it sent to Cattlemen’s Beef Board. For more information on the April 9th, 2018 ruling, see our Ag Law Weekly Review for April 19, 2018.

Air Quality: FDA Approves Drug that Reduces Gas Emissions from Animal Waste
On November 6, 2018, the United States Food and Drug Administration (FDA) published a press release announcing the approval of Experior, an animal drug that reduces the amount ammonia gas released in beef cattle waste.  The first of its kind approved, Experior, when fed to beef cattle under “semi-controlled conditions in enclosed housing” reduces ammonia gas emissions in manure.  Ammonia gas emissions in the air have been connected to noxious odors and atmospheric haze, which can lead to irritation of the eyes, nose, and throat in both humans and animals.  FDA stated that through multiple studies conducted on more than 4,000 cattle, the agency determined that “Experior is safe to feed to beef cattle and that meat from cattle treated with Experior is safe for people to eat.”

Soda Tax: Washington Voters Pass Ban on Local Soda Taxes
On November 6, 2018, voters in Washington state passed Initiative 1634 which prohibits local governments from enacting taxes on groceries.  Under Initiative 1634, groceries are defined as "any raw or processed food or beverage, or any ingredient thereof, intended for human consumption." While Initiative 1634 does not extend the prohibition on local taxation to alcoholic beverages it does encompass sugary beverages such as soda.

Intellectual Property: EU Court Finds “Taste” Not Entitled to Copyright Protection
On November 13, 2018, the Court of Justice of the European Union announced that “the taste of a food product is not eligible for copyright protection.” In 2007, a Dutch company created a cream cheese and fresh herbs dip called Heksenkaas.  In 2014, a competitor created a similar tasting product called Witte Wievenkaas.  Subsequently, the owner of Heksenkaas asserted that the taste of its food product should be entitled to copyright protection.  According to the Court of Justice, for a food product to receive copyright protection under the European Union’s Copyright Directive it must be capable of being classified as a “work.” To be a “work” the food product must be “identifiable with sufficient precision and objectivity.” According to the Court of Justice, “the taste of a food product cannot be identified with precision and objectivity.”

From National Ag Law Experts:
“Ohio Agricultural Law Blog--Meat Law Continues to Sizzle in the News”, Evin Bachelor, Ohio State University Extension (November 9, 2018)
“Mid-Term and More”, John R. Block, Olsson Frank Weeda Terman Matz PC (November 8, 2018)
“Cell Cultured Meat – Now What?”, Sarah Everhart, Maryland Risk Management Education Blog (November 13, 2018)

Pennsylvania Actions and Notices:
The Governor

Vetoes

Pennsylvania Department of Agriculture:

Penn State Research:
       
AgLaw HotLinks:

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Tuesday, March 28, 2017

Agricultural Law in the Spotlight: Understanding Legal Protections and Potential Liabilities Associated with Seed Use in Pennsylvania


Written by Ross Pifer and M. Sean High

With the calendar marking the start of spring, much of Pennsylvania’s agricultural industry has turned its attention to the upcoming planting season.  As they do each year, farmers are making decisions about the varieties of seed that they will be purchasing as well as where they will be purchasing this seed.  In making these important decisions, farmers should be aware that there are several laws – at both the state and federal level – addressing their purchase and use of seed.

This article will discuss the Pennsylvania Seed Act, federal patent law, and the federal Plant Variety Protection Act.  These laws provide some protections for farmers, but they also subject farmers to potential liability where seed is misused in violation of applicable intellectual property rights.  Farmers need to be aware that they may be opening a door to legal liability unknowingly through their seed purchasing decisions.  How can farmers protect themselves from potential liability?  Farmers simply should look for, and read, the label or tag on the seed package or container.  By doing so, farmers can ensure themselves that they are purchasing quality seed and that the intended use of the seed will not violate intellectual property rights conferred by federal law.    

In Pennsylvania, all seed sales are regulated by Act 164 of 2005, also known as the Pennsylvania Seed Act.  Under the Seed Act, all seed distributors must obtain an annual license from the Pennsylvania Department of Agriculture and perform certain testing to ensure the quality of the seed that is being sold.  In the retail market, the Seed Act requires that all packages or containers of seed have a label that includes the name and address of the distributor, the lot number, information about the purity and germination testing of the seed, and other data depending on the specific type of seed.  In addition to potentially decreasing yields by planting seeds with an inferior germination ratio, farmers who buy unlabeled seed risk introducing unwanted weeds into their fields.  If any seed is sold in Pennsylvania without a valid label, that seed has been sold illegally.      

While proper labeling of seed is required under Pennsylvania law, seed labels often also fulfill another practical purpose by indicating to farmers whether the seed is subject to any intellectual property protections – through either patent law or the Plant Variety Protection Act.  According to the Plant Variety Protection Office within the United States Department of Agriculture (USDA), the development of new and improved plant varieties is necessary to “promote agriculture production and food security for an increasing world population.”  To encourage this development, federal law provides seed companies with significant legal protections for the intellectual property contained within the plant varieties they create.  Farmers must be aware of these protections as they face potentially severe legal consequences if they infringe upon these intellectual property rights.    

Seed companies often seek patent protection from the U.S. Patent and Trademark Office when a new seed variety is developed.  A patent provides a seed company with the exclusive right to the use of a plant variety for twenty years.  Thus, patented seed can be used only in the manner authorized by the patent holder.  Any unauthorized sale or use of the patented seed is prohibited for the duration of the patent.  A farmer or merchant who violates a patent through some unlawful action, such as the planting or selling of harvested seeds, may face a patent infringement lawsuit filed by the seed company.  As a result of this litigation, a farmer may bear significant legal costs to defend against the lawsuit in addition to the financial liability imposed if the seed company successfully establishes a violation of its patent rights.

The second type of intellectual property rights of which farmers should be familiar is provided through the Plant Variety Protection Act (PVPA).  PVPA is a federal law administered by USDA that operates similarly to a patent and provides seed companies with a twenty-year certificate to control the purchase or sale of a plant variety.  Farmers violate PVPA when they sell, purchase, offer for sale, deliver, or exchange PVPA certified seeds.  PVPA does provide a narrow exception for farmers who lawfully purchase certified seeds.  In such cases, seeds may be saved and replanted on the farmer’s property, but only in an area no larger than that which was previously planted.  Just as with the violation of patent rights, a violation of PVPA may result in a farmer suffering substantial financial penalties and costly litigation.  Significantly, courts have determined that selling seed in an unmarked bag, a practice commonly known as a “brown bag sale,” can constitute a violation of PVPA.     

When farmers make their purchasing decisions, they need to be aware of the relevant legal protections and responsibilities, including those associated with patented and protected seed, to ensure that they are receiving a quality product and that they are not subjecting themselves to potential financial liability.  As a best practice, farmers should purchase seed only from a licensed seed distributor that properly labels its products.  Farmers then must use patented and protected seed only in the manner authorized by law or the holder of the intellectual property rights.   

Friday, November 6, 2015

Big Data Big Questions Part II

Written by Stephen Kenney

In Part I of “Big Data Big Questions” we discussed Dr. Shannon Ferrell’s testimony before the House Agricultural Committee regarding agricultural big data.  Part I focused on his testimony about the existing intellectual property law and how it applies to agricultural data.  Part II will highlight the potential issues he raised concerning agricultural data collection.

Dr. Ferrell spoke of the many threats that have been realized in the disclosure of personally identifiable information (PII) to outside parties.   Some of those realized threats included the loss of credit card data in targeted hacks of Adobe Systems, Sony, Home Depot and Target among others.   These anecdotes contribute to the concern over the safety of agricultural data.   

According to Dr. Ferrell, most producers are concerned about their data being accessed when it is routed through a cellular signal to be disclosed to the service provider.  Most of the data that is sent to service providers is in the form of telematics data; raw data that has information concerning crop production and GIS information about the farm.  The first protection of this data comes in the form of the cellular signal.  Virtually all cellular signals are encrypted.  The transmitted data could only be stolen by a sophisticated hacker unless he had the decryption key.     Hackers are normally attracted to information that can easily be converted into financial value such as credit card information.  It is more difficult to convert agricultural data into financial gain quickly.   Thus systems storing agricultural data are less likely to be attacked.  Nevertheless, this data could be a more appealing target if the farmer’s vendor account information is linked to their data. 


Dr. Ferrell stated that another major concern for producers is the misuse or inadvertent disclosure of data by the recipient of the data.  One major concern would be the disclosure of that data to regulatory agencies.  There is little law on whether a government agency could simply request data from a service provider and attain it.  Another concern would be whether an opposing party in litigation or potential litigation could coax the service provider into disclosing a producer’s data, even if the disclosure is not legally required.  Dr. Ferrell concluded that, “Ultimately there are no laws defining an inherent privacy right in agricultural data.”  There are protections in place for healthcare data (HIPPA), financial data (Gramm-Leach Bliley Act and Fair Credit Reporting Act), and personal information held by the federal government (Privacy Act of 1974).  There are large categories of agricultural data that do not fall within a protected area.


Friday, June 5, 2015

Revision of International Intellectual Property System Approved


On May 20, 2015, at a diplomatic conference held in Geneva, Switzerland, representative delegates from each of the World Intellectual Property Organization (WIPO) member states approved the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (Geneva Act).  The approved revision now allows for the international registration of qualifying products under the term “geographical indication (GI).”

WIPO is a United Nations organization, established in 1967, that seeks to provide a system that “promote[s] the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation in this field.” Currently, WIPO has 188 member state; including the United States of America.

Prior to the recent approval of the Geneva Act, in order to receive intellectual property name protection regarding the identification of a product’s geographic origin, items had to qualify under the term “appellation of origin (AO).”  To qualify under AO, 1) all of a product’s raw materials must come from the place of origin being claimed; and 2) if the product is processed, that processing must occur in the place of origin being claimed.

While the revised Geneva Act continues to maintain AO protection, it now provides for an easier to attain protection regarding a product’s geographic origin.  Under the revised Geneva Act, items may now acquire geographic name protection if they qualify as a “geographical indication (GI);” a mere claim that a product originated in a specific geographical area (such as Mexican Tequila).  A GI does not require proof of, or allow the additional claims, that all the products raw materials are from that location or that the processing of the product occurred at that location. 

The revised Geneva Act is scheduled to go into effect “three months after five eligible parties have deposited their instruments of ratification or accession.”
Written by M. Sean High - Staff Attorney
June 5, 2015