marker-assisted selection in wheat - ictsd

Chapter 20 – Impacts of intellectual property rights on marker-assisted selection 421might be covered in patents and patentapplications. It is beyond the scope ofthe non-professional patent searcherto state definitively whether or not aparticular sequence is covered by patentrights. Searching patents for specific DNAsequence coverage is not quite as easy asit may seem because of the peculiarity ofthe language used in drafting patent claims.A few example claims taken from twoUS Patents, numbers 6 235 972 and 6 815 578are reproduced in Box 2 to illustrate thecomplexity of this type of claim language.However, there are companies, such asGene-IT, that have developed software tosearch for all possible matches that mightoccur in any patent (available in electronicform), and where unlicensed use wouldbe considered an infringement. A goodpatent drafter will attempt to cover as muchground as possible when writing a patentclaim as the broader the claim, the larger itstechnical spread over the landscape of thatparticular area of science/technology. Thisresults in claims to a sequence and its usesbeing written so that the inventor claimsthe sequence and any sequences that areclosely similar. Just how broadly a claimis written is a matter of how much thepatent drafter/prosecutor can get a patentexaminer to accept. Without the assistanceof sophisticated computer software, it canbe difficult to determine whether the use ofa particular genetic sequence would infringeexisting patents. Fortunately, however,biotechnology patents are now examined bybiologists and molecular geneticists, insteadof, as in the “early days”, by chemists.Copyright aspectsOthers have thought that copyrights wouldbe of little concern to the breeder or scientistinterested in using MAS, in that copyrightinfringement might only occur if a materialsuch as text, a design, photograph or videowas copied and re-used without permission,such as in a publication or video that was tobe distributed widely or sold. However,most results of marker testing need to beanalysed by a computer program for thebreeder to obtain maximum value fromsuch testing. Most software is covered by(at least) copyrights and therefore mustbe licensed from the rights holder. Evensoftware that is distributed under an “OpenSource” type of licence is indeed licensed,and the conditions of the licence must beadhered to when the product is used and/or improved.In addition, care should be taken bypersons creating training materials that willbe distributed widely or sold as part ofa workshop to either refrain from usingmaterials written and created by others orto obtain permission before use, especiallyif such use might be part of a coursewhere participants pay for instructionor must buy the training materials, orwhere materials might be distributed in anelectronic format.Trademarks aspectsIn general, the same is true for trademarksas for copyright. A minor point wouldbe to remind authors that terms such asAFLP ® and “Breeding by Design TM ”,both trademarks of Keygene, Inc., shouldcarry the “®” or “ TM ” designation. Inthis regard, breeders would be primarilyconcerned with the correct use of their owntrademarks, both by themselves and others.When naming varieties, etc., care shouldbe taken to ensure that the trademarkof another entity is not being infringed.Those responsible for creating namesshould therefore check public trademarkdatabases such as the UK TrademarksDatabase (www.patent.gov.uk/tm/dbase/),