Legal Protection for Plant Intellectual

Robert J. Jondle1

Additional index words. utility , plant patents, plant variety protection, breeders’ rights, trade secrets

Summary. An overview of current legal options for the protection of plant is presented. Plant protection options vary from country to country, depending on the type of plant invention-e.g., a new biotechnology method, a gene, plant , or hybrid. Plant science, plant breeding, and biotechnology are interconnected and international in scope. Therefore, it is important to consider international plant protection options available for plant innovations.

he development of new plant inno- A brief history vations by either private or public plant breeders and biotechnol- Prior to 1940, public institutions were ogists involves considerable re- the primary developers of new for searchT and development expenses. Each year, nearly all crop species. By the 1940s, the private companies invest hundreds of mil- development of corn hybrids and certain lions of dollars in biotechnology and plant horticultural crops began moving to the pri- breeding research. Effective protection of vate sector. Private seed companies focused these new plant products is necessary to pro- on the research and development of new vide an incentive to make this large research hybrid cultivars, primarily corn and sorghum, investment. Universities also are selectively which had a “built-in” form of protection protecting certain plant research products to under trade secret law. The parental lines of encourage transfer from the uni- the hybrids could be held as trade secrets, as versity to private industry or to increase re- long as there was no public disclosure. sources for research. After breeders’ rights and plant variety Unfortunately, there is a lack of har- protection laws were enacted, private research mony in world-wide intellectual and development in other crops, such as regarding plant innovations. The confusing soybeans andwheat, expanded rapidly (Lerch, array of options available from country to 1989). Over the past 20 years, the trend in country causes much debate and concern by public research has been to emphasize germ- private organizations as to whether these plasm enhancement, basic plant research, and organizations may obtain reasonable returns new biotechnology techniques and to de- on plant research investments. Public institu- emphasize or discontinue cultivar develop- tions are concerned with how the evolving ment. and increasing plant proprietary rights will Multiple types of plant protection op- affect their research programs and the avail- tions vary from country to country, and in- ability of germplasm. clude the primary categories of utility pat- This article focuses on 1) utility patents, ents; breeders’ rights, including the Interna- 2) breeders’ rights, and 3) trade secret law. I tional Union for the Protection of New Vari- also discuss the issues of 1) lack of uniformity eties of Plants (UPOV) and Plant Variety in world-wide proprietary rights, and Protection Act (PVP) for the United States; 2) development of strategies for obtaining trade secrets; and contract law. The owner of and/or dealing with plant proprietary rights. a plant invention should carefully review and assess the various options that are available in each country.

HortTechnology • July/Sept. 1993 3(3) 301 Utility patents microorganisms per se, on biotechnology pro- cesses such as insertion of a desired gene into Utility patent laws were enacted to pro- a plant species, or on a gene that can be mote progress in the useful arts by granting inserted in many different plant cultivars. The inventors the exclusive right to their discov- first clause of EPC Article 53(b) excludes eries for a limited period or time. Utility protection for plant cultivars per se. Plants patent applications can be flexible in subject containing a gene produced via genetic engi- matter and broader in scope than breeders’ neering are patentable. The EPO states that rights, which cover only new plant cultivars the purpose of Article 53(b) is to exclude (Jondle, 1989). For example, in the United from patent protection matter that is eligible States, utility patents provide protection to for protection under the legislation on the “any new and useful manufacture, or compo- protection of plant cultivars (UPOV). Prior sition of matter, or any new and useful im- to the 1991 UPOV Convention, UPOV rules provement thereof” (35 USC 101), which did not allow a country to have multiple includes proteins, genes, gene fragments, forms of protection for plant cultivars. An DNA, RNA, microorganisms, transformed exception was allowed for the United States, cells, plants, plant parts (seeds, pollen, fruit, because the 1930 Plant Patent Act was al- flowers), plant cultivars, hybrids, and chemi- ready in existence in the United States. cals, as well as the processes of making any of Interestingly, the 1991 UPOV Conven- the foregoing. tion now specifically allows multiple protec- The claims of a patent define the scope of tion options for plants. Whether the EPC will the protection available to the patent holder. be modified to remove the exclusion for One patent theoretically can have as many plants or not is uncertain. claims as the inventor wishes, and the Patent EPC Article 53(b) also excludes from Office allows, but, generally, the average patentability those biological processes that number of claims for an issued patent ranges are directed to the production of plants and from 10 to 60. animals. The purpose of this provision is to Utility patent protection is available for exclude from plant protection activities of biotechnology processes and genes in most plant or animal breeders in the traditional European countries, the United States, and (conventional breeding) sense and the prod- Japan. Utility patent protection for plant ucts produced. Biological processes for pur- cultivars per se is currently available in the poses other than producing plants or animals United States, Mexico, and Hungary, based are patentable. Non-biological processes in- on their respective national patent laws. volving plants are patentable. The EPO has determined that any method of genetic engi- The United States neering is non-biological or “technical.” In the United States, court decisions in Therefore, any method of genetic engineer- Diamond v. Chakrabarty and In re Hibberd ing is potentially patentable. have established that the statutory subject matter for utility patents includes “every- Other selected countries--examples thing under the sun that is made by man.” In the past decade, plant protection and Therefore, any new plant innovations that utility patent laws for plant innovations have meet the requirements ofnovelty, utility, and been changing and evolving in many coun- non-obviousness are eligible for utility patent tries. Specific examples (for selected coun- protection. U.S. patents have been issued for tries) ofvariations in the laws are given below. plant inbreds, hybrids, plant parts, biotech- Argentina. Current policy in Argen- nology methods, genes, and many other plant tina is to refuse applications for plant culti- innovations. vars, pure cultures of “naturally existing” microorganisms, and for plant cells and ge- The European Patent Convention netically engineered plants. The Argentine Plant researchers can apply for utility Patent Office does accept applications for patent protection on their newly developed genetically engineered microorganisms and cultivars, inbreds, and hybrids in the United microorganism processes. States, Mexico, and Hungary. In contrast, Australia. Australian Patent Office the current policy of the European Patent practice appears to permit patent protection Office (EPO) is that plant cultivars and hy- for all categories of biotechnology, including brids per se are not patentable subject matter. pure cultures of a naturally existing microor- The European Patent Convention (EPC) ganism. The Australian Patent Office has includes 14 countries: Greece, Ireland, Italy, described its policy in this regard in the Belgium, France, Austria, Germany, Great following terms: “The criteria to be met Britain, Luxembourg, Netherlands, Sweden, before an application concerned with living Switzerland, Liechtenstein, and Denmark. organisms will be accepted are precisely the The EPO will grant utility patents on same as those for any other application, i.e.,

302 HortTechnology • July/Sept. 1993 3(3) no distinction is to be made solely on the basis obtaining or for the reproduction of that a claimed product or process is, or con- plants,...including genetic or other pro- tains or uses, a living organism. Higher life cesses related to material that is capable of forms will not be treated any differently from causing its own duplication lower life forms such as microorganisms.” •vegetable species and animal species or breeds “The only criteria having particular sig- •biological material as it is found in nature nificance in relation to living organisms is the •genetic material requirement of Section 40 of the Patents Act •inventions related to living matter that makes concerning a full description of the best up the human body. method of performing the invention. In this In summary, the utility patent laws as regard, it should be noted that disclosure of they relate to plant innovations have been a method of performing the invention, i.e., evolving in many countries over the past 3 producing a new organism, which by repeti- decades. Prior to 1980, the utility patent laws tion will again produce the organism, is re- were designed primarily to handle mechani- quired.” cal, electrical, and chemical arts and biologi- The Australian Patent Office issued pat- cal organisms, except that microorganisms ents to new plant cultivars prior to becoming often were viewed as non-patentable. It was a member of the 1978 UPOV Convention this viewpoint that prompted the enactment (Bent, 1987). of breeders’ rights regulations. Brazil. Brazilian Patent Law, in Article The 1961, 1972, and 1978 breeders’ 9(f), has been interpreted broadly to exclude rights (UPOV) conventions prohibited most biotechnology inventions and plant double types of protection for plant cultivars cultivars. Plants formerly were considered and had a major impact on the utility patent patentable under a law enacted in 1969, but, laws drafted after 1961 in most European under the 1971 law, plants are prohibited countries, and all countries (other than the from protection. United States and Hungary) that have joined Canada. Microbiological processes may these UPOV conventions. The 1991 UPOV be patented. In a recent court case, the Cana- convention allows multiple types of plant dian Supreme Court decided that no patent protection where each country decides for for a soybean cultivar could be granted be- itself which types of plant protection it will cause the patent specification did not comply use. with the disclosure requirements of the Cana- dian Patent Act. Breeders’ rights (UPOV), Chile. The Chilean Patent Office inter- prets the law to allow as patentable only seed registrations methods for obtaining a specific biological The purpose of the UPOV convention result. and seed registration laws ofcertain countries Japan Microbiological processes and is to recognize and ensure to the breeder of a products obtained from these processes are new plant cultivar certain rights regarding the patentable. Japanese Patent Office policy is to use by others of the protected cultivar. allow patent protection for processes for de- veloping plant cultivars, but not for the plant Breeders’ rights (the UPOV) cultivars per se. Plant cultivars are protected The International Convention for the under the Seed and Seedlings law. Protection of New Varieties of Plants (the Mexico. As of July 1991, Mexico allows UPOV) was concluded in 1961, and was utility patents to be granted for biotechnol- revised in 1972, 1978, and 1991. ogy inventions, plant varieties, and microbes. Article 2(1) of the original 1961 UPOV However, patents will not be granted for Convention permitted each member state vegetable or animal species, or for animal the option to provide protection rights to genes or parts of the human body. The patent new cultivars by grant of either a special title protection lasts for 20 years from the applica- of protection or a patent, but required a tion date. member state to provide only one of these Mexican Seed Law Article 20 states that forms for one botanical genus or species. the following are considered patentable: Over the next 2 decades, countries that en- •plant varieties acted breeders’ rights legislation implemented •inventions relative to microorganisms the UPOV Convention, which prohibited •biotechnological processes for obtaining having protection by both patent and breed- pharmaceuticals, medicines in general, ers’ rights. The United States was exempt drinks, foods (etc.). from this requirement, having previously en- In addition, Article 20 of the Mexican acted the 1930 Plant Patent Act. Seed Law lists the following as non-patentable At present, there are 22 member states in subject matter: the UPOV. Member States for Breeder’s •processes that are essentially biological for Rights (the 1978 Act) include the following:

HortTechnology • July/Sept. 1993 3(3) 303 Argentina, Australia, Canada, Czechoslova- of a registered cultivar has the exclusive right kia, Denmark, France, Germany, Hungary, to produce and trade the seed of that cultivar, Ireland, Israel, Italy, Japan, Netherlands, New and no other party may use the seed without Zealand, Poland, South Africa, Sweden, Swit- authorization. zerland, the United Kingdom, and the United Japan. Plant cultivars per se are pro- States. Belgium and Spain are members of the tected under the Seed and Seedlings Law, 1961 UPOV Convention. which formed the basis for accession to the The U.S. Plant Variety 1978 UPOV Convention in 1982. Protection Act The 1991 UPOV Convention One weakness of the U.S. Plant Variety (breeders’ rights) Protection Act (the PVPA) is the Farmers’ Exemption (113), which, under one inter- On 19 Mar. 1991, the UPOV adopted a pretation of the statute, allows a farmer to sell new convention, with significant changes from up to, but less than, 50% of his or her har- the 1978 Convention (Jondle, 1992). Com- vested crop of a protected cultivar to other pared to the 1978 Convention, the 1991 farmers for planting purposes. On 30 Sept. UPOV Convention offers important modifi- 1991, the U.S. District Court for the North- cations in the areas of: ern District of Iowa, in Asgrow Seed Co. v. •Longer duration of protection Winterboer; specified a quantitative limit on •Limiting the use of farm-saved seed the amount of farmer-saved seed under 113, •Rights over harvested material and their commonly called the “farmers’ exemption.” direct products This quantitative limit would allow a farmer •Allowing multiple types of protection to save and sell to other farmers, for planting •Adopting a concept of “essentially derived” purposes only, that amount of seed that he or varieties. she could reasonably expect to use for his or Duration of protection. The duration her own planting purposes the following of protection is increased from a minimum of growing season. Defendants Winterboer ap- 15 years to a minimum of 20 years for most pealed to the Court of Appeals for the Federal species. Protection for trees and vines also is Circuit. The Federal Circuit reversed the increased from a minimum of 18 years to a district court decision and remanded the case minimum of 25 years. back to the district court for reconsideration. Limit to use of farm-saved seed. A second important modification in the 1991 Selected countries-examples Convention is to limit the use of farm-saved Argentina. Argentina has plant variety seed. A farmer may use saved seed of a pro- protection laws, but is not a member of the tected variety to plant only on his or her own UPOV. The Argentina Seed and Phyto- holdings. A farmer’s “holding” is defined as gentical Creations Law protects registered land that is owned, rented, or leased by the seeds, including fruits, bulbs, tubers, buds, farmer. Also, farmers are not permitted to sell cuttings, and nursery plants. The new cultivar seed to other farmers for propagating pur- must meet the requirements of distinctive- poses. In the United States, the PVP Act ness, uniformity, and stability. Length of needs to be amended by Congress to delete protection varies depending on the species, the provision authorizing the sale of saved and ranges from 10 to 20 years. seed. Canada. On 6 Nov. 1991, regulations Rights over harvested material. An- for the Canadian Breeder’s Rights Act were other provision of the 1991 Convention pro- published. Applications for plant breeders’ vides breeders’ rights over harvested material rights can be filed for six species, including when 1) the seed is obtained without autho- soybeans, wheat, potato, rose, chrysanthe- rization of the breeder, and 2) the breeder has mum, and Brassica. The cost to receive breed- no reasonable opportunity to exercise his or ers’ rights is about $1650 per cultivar, and her right. This provision does not apply to duration of the rights is 18 years. Addition- farm-saved seed. Also, as an optional provi- ally, compulsory licenses may be granted. If sion, a breeder may have rights over products the holder unreasonably refuses to allow oth- made directly from harvested material of pro- ers to sell the protected cultivar, or limits tected lines. For example, seed of protected distribution, charges very high prices or roy- wheat variety may be produced without au- alty rates, or does not maintain the quality of thorization of the breeder and then used to the cultivar, anyone adversely affected by the produce flour and bread. The owner of the actions of the holder of the right may apply to breeders’ rights certificate could enforce his the commissioner for a compulsory license. or her proprietary rights against the flour or Chile. The Chilean seed registration law the bread in a country that has enacted legis- provides for the registration of cultivars that lation containing the 1991 UPOV Conven- are new, stable, and homogeneous. The owner tion. Both of these provisions potentially

304 HortTechnology • July/Sept. 1993 3(3) would affect the importing ofprotected seed, c) a variant individual or the products directly derived from har- •backcrossing vested protected seed, from countries that do •transformation by genetic engineering. not have breeders’ rights into countries that Proposed ASTA definition. The do have these rights. American Seed Trade Assn. (ASTA) has pro- Multiple types of protection allowed. posed a definition of “essentially derived” as The 1991 Convention allows multiple types follows: of plant protection where each country de- “A new variety should be considered to cides for itselfwhich types of plant protection be essentially derived from a protected variety it will use. The new Convention abandons if, in view of its characteristics and method of the prohibition of “double protection,” which development, it would be considered by a is present in the 1978 Convention. The United plant breeder of ordinary skill in the species to States was excepted from this provision be- have incorporated in the new variety essen- cause patents for asexually reproduced plants tially the entire genotype of the protected under the 1930 Plant Patent Act were avail- variety. Factors to be considered in evaluat- able in the United States at the time the ing the method of development should in- Convention was finalized. Plants also can clude the sources of germplasm used and the receive utility patent protection in the United breeding methods employed, including the States, and there has been some concern that reasonably expected results of those meth- this would not conform with the exception to ods.” the 1978 Convention, This problem is elimi- “Varieties that are essentially derived but nated in the 1991 Convention, which allows nonetheless clearly distinguishable from ex- the United States and all member countries isting protected varieties qualify for legal pro- to decide which forms of plant protection tection but should only be commercialized options to use, and it allows multiple plant with the consent of the owner of the original protections (i.e., PVP certificates, plant pat- variety.” ents for asexually reproduced plants, and ASTA strongly supports the use of the utility patents). language “plant breeder of ordinary skill in “Essentially derived” varieties. The the species” in determining whether or not a concept of essentially derived varieties has variety is essentially derived. Assinsel (the been included in the 1991 Convention. For International Assn. of Plant Breeders for the a new variety to be essentially derived, the Protection of Plant Varieties) has a working variety must be derived from at least one document on the definition of “essentially protected variety. For example, if none of the derived.” parents of a new line are protected, then any new line derived from these unprotected Trade secrets parents will not be essentially derived from an initial protected variety when: In addition to utility patents and breed- •the new cultivar has been predominately ers’ rights, a third important type of legal derived from the initial cultivar protection is by trade secret. Trade secret laws •the new cultivar is clearly distinguishable also are called “confidential information” or from the initial cultivar “know-how” in various countries. Trade se- •the new cultivar conforms to the initial crets can provide protection for a certain variety in the expression of the essential technology that is never disclosed to the characteristics. public, or temporary protection prior to dis- In contrast, the concept of “minimum closing the technology in a patent application distance” looks at how closely two varieties (Ihnen, 1989). are similar and ignores the issue ofwhether or A trade secret can include any informa- not the initial parental lines are protected. An tion, process, or germplasm that gives an essentially derived variety is still eligible for owner competitive advantage. The trade se- protection, but permission is required from cret must be held secret and confidential. the breeder of the initial variety in order to Trade secret law is important to all research- market the variety. Also, the determination of ers, including public researchers, who may whether a variety is essentially derived will not wish to obtain utility patents. Most European be part of the decision as to whether to grant countries, Japan, and others, require that the breeders’ rights. invention not be disclosed publicly prior to Examples of methods that may result in filing of the patent application. Therefore, in an essentially derived cultivars, which are order to obtain patent rights, the invention listed in the 1991 UPOV Convention, are: must be kept secret until the filing date of the •selection (from plants of the initial variety) patent application. of: There are no international treaties that a) a natural or induced mutant, govern protection of trade secrets. There- b) a somaclonal variant, or fore, each country’s law regarding “trade

HortTechnology • July/Sept. 1993 3(3) 305 secrets, ” “know-how,” and “confidential in- employees, contractors, suppliers, conven- formation” will be decided by individual na- turers, and the like to use the trade secret tional law or, in the case of the United States, commercially. However, any disclosure should by individual state laws. be confidential, or made under conditions Secrecy. The level of secrecy required that imply . before trade secret protection is available Trade secret law affords legal remedies varies considerably from country to country. to people whose trade secrets are misappro- For example, in the United States, in a major- priated when it is acquired by improper means ity of state jurisdictions, the definition of a or disclosed in violation of a confidential trade secret in part, is as follows: [a trade relationship. Improper means includes , secret]...may consist of any formula, pattern, bribery, misrepresentation, and breach or device, or compilation of information which inducement of a breach of duty to maintain is used in one’s , and that gives him or secrecy or from a breach of contract. her an opportunity to obtain an advantage over competitors who do not know or use it. Issues It may be a formula for a chemical com- pound; a process of manufacturing, treating, Two important issues involving plant or preserving materials; a pattern for a ma- rights are 1) the com- chine or other device; or a list of customers. plex array of protection options available This definition prevails in the majority of world-wide, and 2) the importance for orga- state jurisdictions, and has been adopted by nizations, countries, and institutions to keep the U.S. Supreme Court. According to the informed and to address intellectual property Restatement definition, in order to qualify as rights. a trade secret, information must i) be used in Research staff are skilled at developing one’s business, ii) provide a competitive ad- new plant innovations, but are often unsure vantage, and iii) be secret. of whether or not to obtain any property Use and competitive advantage require- rights, and which rights to obtain. The avail- ments are arbitrary at best, but the secrecy ability of exclusive rights to a plant invention requirement must be met without exception. often determines whether or not the inven- In general, if subject matter is not actually tion will be commercialized successfully. secret, it will not be protectable as a trade secret. Comment b, Section 757 of the Re- A complex array of protection statement sets forth the most frequently cited options standard for secrecy, and states, in part, that: As was discussed in the section on utility “The subject matter of a trade secret patents, a complex array of plant intellectual must be secret, Matters of public knowledge property rights is available. For private orga- or of general knowledge in an industry can- nizations, it is important first to review care- not be appropriated by one as his secret. fully which countries have the most market Matters which are completely disclosed by potential, and second, to determine which the goods which one markets cannot be his countries have reasonably effective intellec- secret. Substantially, a trade secret is known tual property rights. For public organiza- only in the particular business in which it is tions, it is often important to encourage used. It is not requisite that only the propri- either transfer of the technology to other etor of the business know it. He may, without institutions or to commercialize it. losing his protection, communicate it to The present lack of harmony in plant employees involved in its use. He may like- intellectual property rights produces a con- wise communicate it to others pledged to fusing and complex situation for administra- secrecy. Others may also know of it indepen- tors and researchers in determining what dently, as, for example, when they have dis- protection is available in each country and covered the process or formula by indepen- how strong the protection will. be. Private dent invention and are keeping it secret. biotechnology companies are spending mil- Nevertheless, a substantial element ofsecrecy lions of dollars each year on research and must exist so that, except by the use of development, and they must be able to re- improper means, there would be difficulty in cover their research costs. Otherwise, the acquiring the information.” incentive for research and development will A trade secret has only to be maintained disappear. in relative secrecy. The secrecy does not have Under debate at present are three major to be absolute; i.e., known only to its owner. initiatives regarding the patenting of plants, The secrecy must be considered to be reason- including TRIPS/GATT, NAFTA, and the able, and in essence to be such that the trade EC directive on legal protection. secret is confided only in those who need to The TRIPS (Trade Related Aspects of know in order to commercially exploit it. It Intellectual Property) draft agreement pres- may be necessary to disclose a trade secret to ently allows plants to be excluded by member

306 HortTechnology • July/Sept. 1993 3(3) countries to a GATT agreement. This op- protection is best (e.g., trade secret, utility tional exclusion of plants from patentability is patent, license, breeders’ rights, etc.). Also, a major concern to private companies. The decisions must be made concerning the coun- North American Free Trade Agreement tries in which protection should be pursued (NAFTA) negotiation also allows the op- and whether adequate protection and en- tional exclusion of the patentability ofplants. forcement can be obtained in those coun- The final decisions on these agreements will tries. Part of the planning for new research have an impact on plant research. The more projects should include the potential prop- international uniformity in allowing plants to erty rights that can be developed, and how be patentable subject matter, the greater the strong the protection is for these property incentive for plant research and develop- rights. If there is limited potential return on ment. a research investment, there is more risk and Ideally, to encourage support for plant less incentive to conduct the research or to biotechnology research and development of pursue property rights. new plant varieties, both utility patent pro- For countries with limited plant propri- tection and breeders’ rights protection need etary rights, or none at all, important strategic to be available in as many countries as pos- decisions need to be made. On the positive sible. For plant varieties per se, both utility side, if a country has no plant proprietary patent protection and/or breeders’ rights rights, then there are no legal restrictions on protection should be available, as provided the use or sale of the innovations within that for in the 1991 UPOV Convention. Plant country. Once the plant invention legally varieties that reach the higher requirements enters the country, it can be used freely. On of non-obviousness or inventive step should the negative side, private organizations may be patentable. Some form of breeders’ rights have a strong reluctance to disclose or market also should be available in many countries for a new invention in that country. Additionally, providing plant breeders protection for plant private organizations probably would not cultivars that meet the less-exacting stan- build research facilities or conduct research dards of breeders’ rights law. within that country because adequate forms of property rights are not available. Development strategies In conclusion, it is becoming increas- The second important area is the devel- ingly important to keep informed of develop- opment of strategies for dealing with plant ments in plant proprietary rights, and to intellectual property rights. Each institution, develop a plan to address these rights. Before organization, and country needs to keep in- starting a lengthy or expensive research pro- formed of the evolution of plant protection gram, review the starting materials for any options and address and plan for resolving property rights and determine what are the property rights issues. rights of any final products devel- Government and academic administra- oped. tors need to consider how to transfer most appropriately new technology to the com- Literature Cited mercial environment. Who will decide which innovations will be protected, and with which Bent, S.A., et al. 1987. Protecting property rights type of protection? Will an exclusive license in biotechnology worldwide. Macmillan, London. be required to encourage commercialization Ihnen, J., et al. 1989. Protecting plant germplasm: of the invention, or will a non-exclusive li- Alternatives to patent and plant variety protection. cense (or even no license) be equally effec- Intellectual property rights associated with plants tive? How much revenue can be generated for Amer. Soc. of Agron., Madison, Wis. ASA Spec. university research resources? How will pub- Publ. 52. p. 123-143. lic and private supporters of universities and Jondle, R.J. 1989. Overview and status of plant the government react to this approach to proprietary rights. Intellectual property rights as- generating additional monies? What are the sociated with plants. Amer. Soc. of Agron., Madi- best ways to maintain the primary goals of a son, Wis. ASA Spec. Publ. 52. p. 5-115. public institution in this new age of plant Jondle, R.J. 1992. Review of progress in plant proprietary rights? How are we to deal with utility patents and PVP, Proc. 46th Annual Corn the intellectual property rights of other orga- & Sorghum Industry Research Conf., American nizations? These questions and many others Seed Trade Assn., Chicago. p. 49-57. need to be discussed and debated, and deci- Jondle, R.J. 1992. Legal aspects of varietal protec- sions must be made for each individual orga- tion using molecular markers. Applications of nization. RAPD technology to plant breeding. Joint Plant Private organizations are concerned with Breeding Symp., 1 Nov. 1992. Minneapolis. p. obtaining a fair return on their research in- 50-52. vestments. For each type of plant , Lerch, V.D. 1989. The plant variety protection act: decisions must be made as to which form of A current look. Seed World 127(7):20-24.

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