Principles of Plant Genetics and Breeding

258 CHAPTER 15
may not be patented because it is unpatentable, or perhaps
the inventor may choose not to, or for financial
reasons. Keeping trade secrets is cheaper than applying
for a patent. To ensure that employees who know the
privileged information do not divulge it for any purpose,
some companies enforce a policy that all employees sign
a confidentiality agreement.
Breeders’ rights
This is one of the common protections sought by plant
breeders. It was specifically designed for the benefit of
plant and animal breeders to protect them from the
unlawful use of their creation by other scientists, competitors,
or producers. Exclusive rights to the sale and
multiplication of the reproductive material may be
obtained, provided the cultivar is new and not previously
marketed, is different from all other varieties, and
is uniform (all plants in the cultivar are the same) and
stable (remains the same from one generation to the next).
Trademarks
Pharmaceutical companies use trademark protection
extensively. Trademarks are important to all businesses.
Patents
Plant breeders protect their inventions by seeking
patents. The right to patent an invention is one of the
most widely applicable distinct rights provided by intellectual
property.
Patents
Definition
A patent may be defined as an exclusive right granted
for an invention of a product or process that provides a
novel way of doing something, or offers a new technical
solution to a problem. The owner of a patent is the
patentee. A patent provides protection for the invention
to the patentee for a predetermined period. A patent
may be described as a “negative right” because it confers
upon the patentee the right to exclude others from commercially
exploiting the invention without the owner’s
authorization. The protection stipulates that without
permission, no one should make, use, sell, offer for sale,
or import the invention. The duration of such exclusive
rights is 20 years, after which the invention is released
into the public domain. It should be pointed out that
while a patent prohibits unauthorized use by others,
it does not authorize limitless use by the patentee. A
patent is not a “positive right” because it does not
empower or obligate the patentee to do something that
he or she would otherwise be prohibited from doing. In
other words, in making, using, or selling the invention,
the patentee must operate within the limits of existing
laws of society. Further, it goes to emphasize the fact
that an inventor is under no obligation to patent an
invention in order to commercially exploit it. However,
without a patent for protection of the invention, a third
party can commercially exploit the invention without
authorization and with no legal consequence.
Importance of patents to society
Patents are so pervasive in society that it is nearly impossible
to find anything created by humans that is not
directly or indirectly associated with a patent. As the
US constitution indicates (US Constitution, Article 1,
Section 8, cl. 8) the patent law serves to “promote the
progress of science and the useful arts”. In exchange for
exclusive rights to the invention, the patentee is obligated
to disclose the invention and provide information
that expands the existing technical knowledge base.
In other words, whereas others cannot imitate the
invention during the life of the patent, they can utilize
the divulged information toward further innovations,
advancing science and arts to enhance the quality of life
of humans. Patents are not only prestigious to own, but
they have potential financial value. They provide effective
incentives for creativity and innovation, recognizing
the achievement of the inventor and in cases, where
the invention can be commercialized, financial reward.
Because companies invest large sums of money in the
R&D (research and development) of new products,
patents ensure that they can enjoy a monopoly for a
period in which they hopefully recoup their investments,
at the least. Patents are hence strong incentives
for continued R&D. It goes without saying that forprofit
breeding companies invest resources in improving
crop species with high market potential. Hence, crops
of low market potential but of high social value (e.g.,
important to poor developing countries) are often
ignored (the so-called “orphaned crops”).
What can be patented?
Patent law specifies what can be patented and the conditions
under which a patent can be granted. One of