marker-assisted selection in wheat - ictsd

418Marker-assisted selection – Current status and future perspectives in crops, livestock, forestry and fishin Drahos, 2005), such as rights/requirementscovered by conditions associatedwith a contract is often described as an IPR,although technically these types of rightsor conditions are not the subject of IP lawin most countries, but rather are a part oflegal codes that deal with private rights.These requirements might be of concernto breeders working under conditions thatrequire the use of contracts such as materialtransfer agreements (MTAs). Conditionsthat result from entering into agreementsor contracts could carry a minimum levelof awareness of the duties or responsibilitiesincurred by one agreeing to theterms. Other “non-statutory” rights couldinclude contractual/legal terms, such asthose included in a licence or a “TechnologyUse Agreement” (TUA). Enforcement andpractice associated with contract law varyin all jurisdictions and can even vary at thelocal level. O’Connor (2006) has recentlypointed out the degree to which MTAsare used to confer a licence to both patentrights and biological materials themselves.He refers to this arrangement as a “leaselicence”model wherein the IPRs and thephysical property rights are “woven”together. Again, if the documents are readcarefully, these conditions will not takeanyone by surprise, in that they are a partof a contract or licence or other permissiongranted by an owner or provider of material.However, sometimes this permissionmay be agreed to in a manner that does notmake a strong impression on a recipient.For example, the so-called “shrink-wrap”licence that accompanies software, or the“click-wrap” licence that covers softwareor other material downloaded from theInternet, may be too subtle for most peopleto be really aware that they have agreed toa licence. In agriculture, “bag-tag” or “seedwrap” licences exist that have the samesort of connotation (Kershen, 2004). Manycourts have looked at the enforcementof these licensing/contract issues, withslightly varying results. The web site www.lex2k.org/shrinkwrap/shrinkwraprev.htmldescribes individual cases and discussesthese cases with regard to enforceability of“shrink-wrap” contracts in different jurisdictionsand conditions.Examples of IPR practicesassociated with the use ofMAS and recommendations forscientists and breedersThe type of formal IPRs most likely to causea problem with the utilization of MAS arepatent rights. Some examples of patents inthis area are given in Table 1. Patents/patentapplications are also listed in the paperby Concibido, Diers and Arelli (2004).Also, as mentioned in the preceding section,contractual arrangements/obligations mayinterfere with unfettered use of productsand processes associated with MAS.Patent rights have been awarded formost of the materials and methods thatare involved in practising MAS within allfields of agricultural production. A carefulresearcher will choose methods and markersequences that have been published andthen carry out at least a cursory searchof patent databases such as the EuropeanPatent Database (http://ep.espacenet.com) to make a first pass for determiningthe likelihood that the method and/orsequence(s) of choice are not covered bypatent rights in the jurisdiction where theywork. Depending upon the level of riskthat one is willing to assume, for work thatcould result in a commercial product, moreinvestigation is likely needed and perhapsthe services of a patent information specialist(see www.piug.org/) or an IP lawyerwill be required.