BP Singh

238 R.S. Ranaexclusion of tuber propagated plants was that their propagatingand edible portions of the plant were the same (stems). Commonunderstanding at that time was that only asexually reproducedplants were capable of reproducing true-to-type. Hence, sexuallyreproducing plants were excluded from protection.Protection of plant varieties that are reproduced sexually wasgranted by the Plant Variety Protection Act (PVP A) of 1970. Plantbreeding had reached a .stage by that time to develop generalopinion that new sexually reproduced varieties also could bereplicated true-to-type when self-pollinated. Noteworthy provisionsof PVP A are mandatory license, exemption for planting of savedseed, exemptions for sales by persons whose primary occupationis farming, and also an exemption for research use. Protectionunder PVP A does not extended to fungi, bacteria, or firstgeneration hybrid plants.PVP A does not provide protection to commercial hybrids insexually propagated crops (like maize) because hybrids do notreproduce true-to-type in such crops. Protection of hybrid' seedscan be achieved by protecting the inbred parent lines that are usedto produce hybrid seeds and this can be done as trade secrets.Thus, the option of protecting inbred parent seed as trade secrethas been used as a strategy by breeders for protecting theirproprietary inbred lines and also for retaining reasonable controlof their exclusive genetic stocks.A more restrictive regime of patenting, called, Utility Patents,is also being used now by breeders. US Supreme Court's decision(1980) in "Diamond vs. Chakrabarty" opened up this option. Priorto this decision, it was commonly believed that utility patents werenot obtainable for plants. Utility patents were, however, beinggranted for methods of hybridizing and breeding plants.It is important to \assess the type and scope of protectionrequired by a breeder dr other researcher while deciding whichform of intellectual prop'erty protection is appropriate for a given'invention' in plant biotechnology. Protection under PVPA coversthe whole plant only and extends to the plants of the variety asdesr:ribed in the document. In contrast, the utility patent systemprovides for claims of varying scope that can be granted dependingon the nature of the 'invention'. It is noteworthy that, only utilitypatent allows for protv('tion of genes and other parts of pl~nts.