Innovative Ideas: Protecting the Valuable Intellectual Property Assets of Agribusiness Innovators
Feeding a growing world using finite resources: that is the challenge of modern agribusiness. The need to increase yields and decrease resource consumption demands innovation. One modern innovation is the use of agricultural practices that are data driven. For example, producers are investing in precision planting and data gathering tools that collect everything from weather and agronomy data, to feed and water consumption metrics for livestock. In a recent survey by the American Farm Bureau Federation, producers estimate that data driven agriculture has reduced input costs by an average of 15 percent while boosting crop yields by 13 percent. Amidst this foray into the numbers game, it is important to understand the intellectual property aspects involved in protecting such agricultural innovations.
The American producer generates data every time he or she operates a combine, operates a sprayer, or delivers seed to the grain elevator.
However, not all producers are aware of the amount of data they generate or the full extent of the value of that data. It is the value of that data that intellectual property (IP) laws can help protect and even monetize. Copyright and trade secret are two particularly useful types of IP used to protect such rights.
Copyright Protection for Agricultural and Farm Business Owners
A copyright, the term originally referring to a “right to copy” the works of an author, protects the preserved, original expression of an idea. In the context of data, this means that copyright potentially protects the selection and arrangement of data fixed in a tangible form (for example, magnetic media, handwritten notes, etc.), although the underlying facts themselves are not protected by copyright. Copyright law provides a bundle of exclusive rights to the owner of a copyright. These include the exclusive right to control copying, create adaptations or derivative works, and distribute copies. Anyone who violates any of these exclusive rights of the copyright owner is an infringer.
For a producer or agricultural business owner, valuable data is created every day from information that is collected, compiled, and categorized on the farm or in a laboratory or manufacturing facility. For example, the following may all be copyrightable:
An operator manual created by a farmer to teach employees how to operate a combine to maximize fuel efficiency;
A collection of soil agronomy readings, fertilizer usage, yield data, water usage, and temperature readings compiled in a database and accessed through an original screen interface; and
Photographs or videos of livestock handling procedures.
If the producer, agricultural business or their employees creates the writing, photo, video, or software, the producer or business owns the copyright. If the producer or business hires an independent contractor to develop the manual, take the photo, or write the software, then assignment documents must be in place to ensure that the agricultural business will own the copyright. It is important to remember that merely paying someone to perform these tasks does not automatically result in ownership of the copyrighted work.
Protecting Data through Trade Secrets
Trade secret protection also is available to data. A trade secret can be any information, method, process, device, formula, software, etc., that is valuable to its owner because it is not known or accessible to others. In order to be a protectable trade secret, the owner must take reasonable measures to keep the information secret.
What Constitutes an Agribusiness Trade Secret?
Trade secrets on the farm or in the agricultural business may be formulas for fertilizer, planting patterns, spraying devices and methods of using them, breeding processes, and any other specialized information or knowledge that is valuable to its owner as a secret. Technical and business information can be a trade secret if it is kept a secret. Even information about systems and procedures that were tried but later abandoned because they were failures can constitute a trade secret.
Trade secrets do not have to be written down, they do not have to be original, and they do not require registration in order to enforce them. However, trade secrets have to be kept secret. Once secrecy is destroyed, there is nothing left to protect. Relying on trade secret protection for important aspects of a farm’s operation or an innovative agribusiness requires a careful program of written agreements with employees, officers, contractors, and visitors who may be exposed to the secret. Employees and contractors might take both confidential and trade secret information with them simply because they were party to its creation or used such information in course of their employment. The producer or ag innovator, as the owner of the trade secret, needs to recognize his or her rights and responsibilities in such cases. Written policies should be in place to protect them, including appropriate non-disclosure and confidentiality agreements. Fortunately, federal laws criminalize certain thefts of trade secrets. Most states also have adopted the Uniform Trade Secrets Act to provide further remedies in the event of a misappropriation of trade secrets.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.