marker-assisted selection in wheat - ictsd

408Marker-assisted selection – Current status and future perspectives in crops, livestock, forestry and fishbalance between private rights and the needsof society (Murchie et al., 2006). Society ispresumed to benefit from public disclosurein the form of patent disclosure requirementsand copyrights, which are awardedto creative works that have been fixed (madetangible). In addition, through the combinationof the requirement of full disclosurein the written description (manifested in apatent application), and the time limitationover patents rights, inventions are put intothe public domain when the rights expire.The pharmaceutical industry’s experiencewith the success of “generics” is a testamentto the value of “expired” inventions (CBO,1998). In some specific cases, however, suchas patents on certain drugs, rights may beextended for a certain period of time uponrequest to compensate for long delays inobtaining authorization for drug commercialization,e.g. the “Hatch-Waxman” actin the United States of America. The filing,prosecuting and maintenance of patents arebusiness decisions that are put into placeas a part of the strategy for bringing productsto the consumer. An additional partof such a strategy can also include a planfor maintaining profitability when patentrights expire (Smyth, 2006). For example,depending upon the creativity of inventors,it may be that improvements allowfor the filing of additional patents to coverthese improvements, thus having the effectof extending patent rights for additionalterms. This is a fact-based process, in thatthe improvement must meet the requirementsof invention. Not that efficient and sincere disclosure is notwithout problems – see Fromer (2007).Note that concerns regarding the abuse of thepatenting of incremental changes versus incrementalimprovements are often raised by a practice of patenttime extension called “evergreening”. For furtherdiscussion of evergreening from the view of genericpharmaceutical manufacturers, see Hore (2004).The balance between public and privaterights is considered by some to be tiltedin favour of private rights, leaving elementsof some societies wondering if IPRsystems work at all except to protect themonopolies that they award (Epp, 2004).A number of civil society organizations aremonitoring the potential effect of changingIndia’s patent law to include patents overpharmaceutical products and agriculturalchemicals (Sreedharan, 2007).Intellectual property law as itrelates to MASThe standard steps employed in MASgenerally include: selecting individuals tobe tested; harvesting material; extractionof DNA from the material; polymerasechain reaction (PCR) amplification of theDNA to enrich for gene sequences/fragmentsassociated with a particular trait orphenotype; separation of these fragments;visualization/identification of DNA fragments;and interpretation and utilizationof the information. Each of these stagesinvolves certain methods and the use ofparticular reagents and/or equipment associatedwith the particular methodologicalsteps. For the purposes of this chapter, aseries of tables (numbers 1–3) has been preparedto exemplify the types of intellectualproperty and associated IPRs that exist formaterials and/or processes within each ofthese seven steps.There is a general set of categories ofIPRs that are awarded in most countries/jurisdictions. These include industrial orutility patent rights, plant variety protection/plantbreeders’ rights, copyrights,rights of appellation/geographic indications,trademarks and secrecy rights (tradesecrets) associated with undisclosed or confidentialinformation. Other types of patentrights can be awarded in many jurisdictions.