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for public institutions to assure equal access to protected materials and to provide 

 broad-based notification of all technology made available for potential licensing. The 

 goal of licensing by public institutions should be to maximize public benefit; accru- 

 ing revenue should be a lesser priority. 



The licensing work group encouraged significant efforts in education and commu- 

 nication on intellectual property issues, especially licensing within public institu- 

 tions. All staff should be well informed regarding options for protection, material 

 transfer agreements, and institutional policies. 



Lastly, licenses must be enforced. Agreements need a due-diligence clause or 

 march-in clause and prohibitions against transferring licensed materials to third 

 parties. 



EXEMPTIONS WORK GROUP 



Two types of exemptions are important to plant intellectual property — research 

 and farmer exemptions. Research exemptions allow the use of protected intellectual 

 property for true research purposes, without infringement. Farmer exemptions 

 allow farmers to keep seed they produce from protected materials and use it for 

 seeding purposes in their own enterprises. The Plant Variety Protection Act (PVPA) 

 explicitly contains both research and farmer exemptions. The current farmer ex- 

 emption in the PVPA allows a farmer to sell significant quantities of "surplus seed" 

 to neighbors, a provision that has been the subject of considerable debate and litiga- 

 tion. It is generally accepted that a de facto farmer exemption exists — saving seed to 

 use on one's own farm — due simply to the fact that enforcement would be impracti- 

 cal. 



Utility patent law makes no provision for exemptions, and there has been no at- 

 tempt to establish these exemptions within the law. Judicial decisions appear, how- 

 ever, to provide an exemption from infringement penalties for noncommercial re- 

 search. Ambiguities arise in determining what constitutes "noncommercial" re- 

 search. The same rules need to apply to public sector research as to private sector 

 research, since universities often engage in research that can have commercial po- 

 tential. 



Conferees generally recognized that the current PVPA farmer exemption does not 

 provide adequate protection for intellectual property. As a result, many inventors 

 are seeking patent protection in lieu of plant variety protection. In addition, the 

 current PVPA does not conform to the 1991 Convention of International Union for 

 the Protection of New Varieties of Plants (UPOV). The farmer exemption provision 

 of the 1970 PVPA requires revision so that farmers may continue to keep seed of 

 protected varieties for their own use, and may be entitled to sell protected seed to 

 others under unusual circumstances. 



Much discussion centered around the question of "minimum distance," i.e., how 

 different must a new variety be from a derived parent to qualify for protection 

 under variety protection laws. There was no agreement on this issue among confer- 

 ees, but it was agreed that some quantifiable minimum genetic distance should be 

 required for a variety to qualify for protection as a new entity. 



Patenting of plant materials may interfere with exchange of materials among re- 

 searchers and among Government, university, and private laboratories. Such con- 

 cerns could be allayed by a research exemption elective under utility patent law. 

 Such an approach, however, would require revision of the patent law. An alterna- 

 tive approach would be for institutions desiring to provide a research exemption to 

 adopt policies whereby an explicit research exemption is included in all licenses. 



GERMPLASM AND INFORMATION EXCHANGE WORK GROUP 



The goal of germplasm and information exchanges should be to make the best 

 possible genetic resources available for use in solving world agricultural problems. 

 Germplasm, broadly defined, includes all genetic materials and information associ- 

 ated with plants, such as landraces, advanced breeding lines, varieties, cloned genes, 

 probes, nucleotide sequences, etc. Germplasm exchange ranges from very formal, 

 with written and legally enforceable agreements, to informal exchange of materials 

 between scientists with no exceptions or implied limitations on use of the materials. 



Access to actual living plant materials, in the case of plant intellectual property, 

 is more important than for other types of intellectual property. Higher plant germ- 

 plasm is very difficult to describe verbally and impossible to duplicate simply from 

 descriptions. Thus, improvement requires physical access to the germplasm itself, 

 making exchanges extremely important to advancement of the science. Free ex- 

 change is understood to mean exchanges of an unrestricted nature, i.e., available to 

 anyone, whereas exchange for free means that there are no costs associated with the 



