Proceedings of the Fifth Asian Regional Maize Workshop - Search ...

nology and its reliance on patents, this clause of PYA has come under critical evaluation in
recent years. Patented genes introduced through genetic engineering into the plant genome cannot
be incorporated in other varieties through classical breeding or otherwise without permission
from the patent holder.
The farmer's privilege (right to save seed) clause has come under attack from the seed
industry in recently years because of exploitation of this privilege by farmers and by some small
seed traders. Amendments to tighten farmer's privilege and breeder's exemption are being sought
by the seed industry.
Patents
Most industrialized countries have well developed patent legislation. Although there are
differences among countries, the general principles are similar. Patent protection can only be
obtained for inventions; a) that are novel, that is, inventions not available to the public
before the date of application for the patent; b) that are non-obvious and contain an inventive
step; c) and that have industrial utility. In addition, the patent application should contain
what is called an enabling disclosure, that is, a detailed description of the invention that
enables any person familiar with the technical field of the invention to understand and reproduce
the invention.
The scope of a patent is determined by the content of the claims. The patent system
offers the possibility of protection for processes, such as plant transformation and for novel
genes which can be expressed in plant cells and can confer useful properties on plants. The
extent to which claims are allowed is determined by the competent patent office examining the
application for requirements for patentability and sufficiency of disclosure. That examination
takes into account everything known by the public at the time the application was filed.
An invention entitled to patent protection can consist of a product (or a series of
products) or a process for making a product. In this respect it differs from plant variety
rights which are only granted for a single product, namely, one specific plant variety. Patent
legislation contains a provision known as the research exemption under which the use of a
patented invention for experimental purposes does not infringe the patent. The experimentation
is permissible only to satisfy research needs and not for commercial purposes. Unlike PYA,
nothing like"farmer's privilege is ever granted by patent protection.
An important feature of the patent system is the concept of dependency. For example a
patent claim on a process to transform corn, although perfectly patentable in its own right,
might fall within the constraints of claims of another independent patent directed towards a
process to transform monocotyledonous plants in general. In that case, commercial corn transformation
would require the consent of the owner of the patent on transformation of monocotyledons.
Likewise, to apply his patent to corn, the monocotyledon transformation patent owner would
require the consent of the patent owner of corn transformation.
Recent deve 70pments
Patents on plants, plant varieties, seeds, etc. are allowed in the u.s. whereas the
situation in Europe is somewhat different. Recent decisions from the European Patent Office
(EPO) make clear that claims on plants not conforming to the traditional criteria of plant
varieties are allowed. The proposed Directive on the Legal Protection of Biotechnology Inventions
of the commission of European communities aims at defining:
1) The patentable subject matter in the plant field.
2) The scope of protection conferred by a patent to a transgenic plant.
3) The relationship with the PYA system.
According to the current draft of the proposed Directive,plants, except plant varieties as
such, are patentable SUbject matter. Furthermore the protection of a product consisting of a
piece of genetic information extends to all products in which this piece of genetic information
is incorporated. Similarly, a claim to a plant with particular properties covers any such plant
and all its descendants. Moreover, protection of a biotechnological process for production of
transgenic plants covers not only the product directly obtained by the patented process but also
all its descendants.
230