In 2001, the United States Supreme Court held that seeds were patentable subject matter - a decision, I assert, of much discussion and little impact. Protection of agricultural intellectual property through private ordering, used both to expand the protection available through public ordering and to circumvent the restrictions public ordering places on owners of intellectual property, has provided the incentives necessary to promote investment and innovation in seeds. It has not been the patentability of seeds that has led to agricultural advances, but rather the profitability of licensing agricultural intellectual property. What if seeds were not patentable? So what if they are. Innovation in seed has been neither promoted nor incentivized by the extension of patent protection, but rather by private ordering and free markets.
Elizabeth I. Winston, What If Seeds Were Not Patentable?, 2008 MICH. ST. L. REV. 321.