101 



APPENDIX 



When we, the potato breeders, use the term intellectual property we are 

 usually referring to a new potato cultivar. Intellectual property rights (IPR) 

 is a concept that has guaranteed rights under the law which recognizes the 

 ownership rights of a specific cultivar. If the breeder discloses the invention 

 to the public, then the government will grant the breeder time- limited rights to 

 exclusive use and sale of the cultivar. It is with the hope that this 

 information can then be used for further advance of science. 



What is the rationale of IPR for plant material? The development of novel 

 plants can be expensive and is a long-term investment. The U.S. patenting act 

 of 1790 was created for the purpose of rewarding inventors by protecting their 

 invention. The philosophy, is that if there is no protection there would be 

 little incentive to develop new products. The discussion below describes the 

 various forms of protection we have available for plant varieties in the U.S. 



PLANT PATENTS 



The PPA of 1930 provided protection for asexually propagated varieties. 

 Before the passage of the PPA in 1930, it was the common perception that plants 

 and other living organisms were not eligible for plant protection because living 

 organisms were products of nature. In the drive to pass the PPA, advocates for 

 the PPA pointed to the great agricultural and horticultural contributions to 

 society by plant breeders. They wanted to remove the existing discrimination 

 between plant breeder and industrial inventors. Interestingly, Luther Burbank, 

 breeder of the Burbank potato, was a noted advocate of plant patents. 



A plant patent may be granted to anyone who invents or discovers and 

 asexually reproduces a variety which is distinct, novel and non-obvious. In 

 practice, the application of the criterion non- obviousness to plants seems to be 

 linked to distinctiveness. For example, the candidate variety must be distinct 

 by something more than a minor (cosmetic) characteristic. To obtain a plant 

 patent the variety must be described as completely as reasonably possible and 

 only one claim is permitted per variety. A plant patent application also 

 requires a varietal name for the plant variety for which protection is sought. 

 The PPA specifically exempted plant patent applicants from the requirement of the 

 enabling written description. A printed publication, which would bar a utility 

 patent application, is not a barrier to a plant patent, on the ground that a 

 printed publication was nonenabling for a plant. The person granted the plant 

 patent is entitled to exclude others from asexually reproducing the plant, 

 selling it, or using the plant that is reproduced. Plant patents may involve 

 less attorney preparation compared to and filing time than utility patents and 

 may avoid deposit costs. 



The definition of patentable subject matter is contained in section 161 of 

 Title 35, in which- tuber-propagated plants are excluded. The exclusion of tuber- 

 propagated crops was a political rather than a scientific decision and was 

 largely because at that time the potato industry did not support patents for 



