3.13.1 Types of Property Rights Relevant to Plant Breeding
Plants made through plant breeding methods (e.g., sexual crossing and selection) are subject to several types of property rights—any of which may be important to the TTP/TTO in the Tech Transfer and commercialization process. First, because plant breeding involves tangible Bioproperty of whole plants, their parts, seeds, cuttings, tissue cultures and cell lines, bailments/MTA are a central property type. Regarding IP, many countries have national laws that provide patent-like coverage to plant lines and varieties. Some of these countries are members of the international treaty UPOV or the International Union for the Protection of New Varieties of Plants (Union international pour la protection des obtentions vegetale).
UPOV countries provide patent-like rights to the creators (i.e., breeders) of new varieties of plants. These rights are patent-like because they grant the right to stop others from making and selling the protected plant line. However, unlike a patent, UPOV-based rights allow non-owners the right to use the protected line for breeding and research purposes. UPOV plant property rights cover sexually propagated (by seed) and asexually propagated (clonal) types of plant. In the United States, it is more complicated: sexually propagated plants are protected by the UPOV-type law (i.e., the Plant Variety Protection Act or PVP) and by utility patent; and asexually propagated plants are protected by plant patents.
More detail on plant IP and Bioproperty on this presentation.
3.13.2 Managing Plant-related IP and Bioproperty
The key to managing plant-related IP and Bioproperty is to assume that the two will almost always be used in combination. Bioproperty management rules and practices should always be employed in any plant breeding program. That should include an effective, systematic, and rigorous use of MTAs for all transfers of any plant material associated with a plant breeding program, into or out of the institution. This meticulous implementation of an MTA program provides a solid base for pursuing plant IP on those lines that warrant it, and for combining Bioproperty and IP mechanisms for commercialization. Such practices are also essential for good control over plant breeding activities in non-profit consortia and other research partnerships for the public good.
3.13.3 Licensing Plant Lines and Varieties
Licensing plant lines and varieties is very similar to licensing any other form of technology. A License Agreement for plants will look essentially the same as any other IP license, with some special features like quality control mechanisms to assure proper propagation of the licensed material, effective labeling, protection of the licensed IP and Bioproperty from theft, and disposition of plant materials upon termination.