Most people wouldn’t think twice about using pesticides or herbicides to protect crops and vaccines and antibiotics to protect livestock or obtaining insurance or security systems to protect equipment.
Often forgotten, however, are protective measures in respect of the intellectual property that might exist in a farm or agricultural business.
Ag businesses that use, develop or invest in agri-technology should carefully consider how their IP is being protected, just as they would protect their crops, livestock and equipment.
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When considering IP, most people think immediately of new inventions and patents.
While the IP in new inventions may be the easiest to identify and protect, there are many other aspects of IP that should be considered.
It may also be the case that one or more types of IP protection may be applicable, and the obvious one may not always be the best, depending on a farm’s business goals, so IP should be assessed on a case by case basis:
- Copyright — Protects original works expressed in a tangible form, such as source code for a software program designed to analyze crop yields. For a limited period of time, a copyright owner has the sole right to produce, reproduce, perform and publish that work.
- Trademarks — Protect words, designs, sounds, symbols and other identifiers of source, such as the name and brand of your farm operation. Trademarks are used to distinguish the goods or services of one person or organization from those of others. Over time, trademarks can become more valuable as they become more recognizable.
- Patents — Protect things such as processes, methods, devices or substances that are new, useful and inventive, such as a new method of spraying inputs on a field using precision sprayers. Patents give the owner exclusive rights to that invention for a period of 20 years.
- Industrial designs — Protect a product’s unique appearance, such as the unique colour combinations of a farm implement.
- Trade secrets — Confidential information that is not generally known to the public and has economic value, such as algorithms, formulas and in some cases, agricultural data.
- Plant breeders’ rights — Protect new plant varieties, giving plant breeders the sole right to propagate and profit from their creations, such as a new drought resistant variety of corn.
- Geographical indications — Identify and protect the reputation of products originating from a specific geographic region, such as Canadian rye whiskey.
- Ag data — Includes agronomic data, such as data about seed types, yields, disease and pest management application, fertilization and prescriptions; land data, such as data about soil fertility, topography, watersheds, drainage and tillage; farm management data, such as data related to financial, tax, employment, commodity prices, regulatory compliance, supply chain management and other data related to the business; machine data, such as telematics information, machine health, fuel consumption, load, use and other machine performance data; and livestock data, such as data about animal identification and pedigree, genetics and feed consumption.
Why intellectual property matters
Protect your investment — The use and development of IP often requires significant investment and should be protected, just like any other asset in an ag business.
Maintaining a competitive advantage — Obtaining IP protection, including by registering your rights in such IP, can be used both as a shield to prevent competitors from copying your innovation and as a sword to pursue those who have infringed on your IP rights, ensuring that your business’s unique IP assets remain valuable in the market.
Bolster investor confidence — IP protection is attractive to investors. It signals that a business is committed to protecting its assets. Confident investors may be more likely to provide your business with financial capital.
Commercialization — IP protection may allow your business to retain more ownership and control over its assets and how that IP is used to generate additional revenue opportunities, for example, by licensing the IP to other interested parties for a fee or a royalty.
If you have a topic or question you would like us to address in future issues, please email kkriel@mltaikins.com.
Danielle Graff and Nicolas Joubert are partners at MLT Aikins LLP and Justin Papoff is a student-at-law at MLT Aikins LLP. This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
