103 



one year passes between public disclosure of the cultivar and the patent 

 application. One should also keep detailed records that should be dated and 

 signed. In addition, tight control should be maintained over the cultivar. It 

 should not be shared with anyone without a valid testing license and any plants 

 of the cultivar should not be sold. 



TRADE SECRETS 



Trade secrets are appropriate primarily for protecting unique breeding 

 methods or laboratory techniques that are never exposed to the public. Parental 

 inbreds which are cross -pollinated to produce Fl hybrid cultivars are protected 

 as trade secrets. A trade secret can be protected over a long period of time. 

 As long as there is no public disclosure of the trade secret, it can be enforced. 

 This form of protection, is usually not an option in considering an asexually- 

 propagated cultivar or inbred line of a plant variety where true-to-type "seed" 

 is to be sold to the general public. 



CURRENT STATUS OF PROTECTION 



In summary, for a plant patent or PVP, the protection is straightforward. 

 Protection extends to the variety described in the document. PPA covers the 

 whole plant, whereas the PVPA covers only the seeds for the plant variety. If 

 the statutes are changed to reflect the 1991 UPOV Convention (discussed above), 

 plant parts would also be protected and derived varieties which retain essential 

 characteristics would be covered. The utility patent system allows for claims 

 of varying scope and emphasis depending on the nature of the invention and the 

 prior art. 



Several key provisions of the PVPA are not equivalent to any provisions in 

 the utility patent or plant patent systems. These include mandatory license, a 

 series of statutory exemptions for saved seed, an exemption for sales by persons 

 whose primary occupation is farming (neighbor to neighbor sales), and a research 

 exemption. 



WHAT IS INFRINGEMENT? 



Unlicensed propagation of a protected cultivar for any purpose is an 

 infringement of the breeder's rights except for neighbor to neighbor sales. A 

 research exemption is recognized in the PVPA but is not implicit in the PPA or 

 the utility patents. If someone infringes upon the patent the burden of proof 

 falls upon the patent holder. Failure to pay royalties assigned to the plant 

 cultivar is against the law and is no different from stealing. More detailed 

 infringements upon the PVPA are described in Public Law 91-577. 



