marker-assisted selection in wheat

Chapter 20 – Impacts of intellectual property rights on marker-assisted selection 409For example, in addition to utility patents,two others types of categories of patentsare available to inventors in the UnitedStates: a design patent for a new originalor ornamental design for an article of manufacture,granted to protect the externalappearance rather then the function of aproduct, and plant patents, awarded for theinvention or discovery of a cultivated plantvariety that can be asexually reproduced,(except via tubers, but including graftsand spores). Other countries have additionalcategories regarding subject matter(e.g. designs, plants) and also with respectto examination rigour and length of thepatent rights grant (e.g. “short-term” patentsin Belgium and the Netherlands (seee.g. www.ipr-helpdesk.org/docs/docs.EN/invencionesTecnicasBP.pdf), and innovationpatents in Australia (www.ipaustralia.gov.au/patents/what_innovation.shtml).Patent rights are awarded to inventionson the basis of criteria associated with usefulness(industrial applicability), originality(newness or novelty), and an “inventivestep” (non-obviousness to persons withtechnical skills in the particular field wherethe invention is applicable). There are alsorules governing the subject matter of theinvention for utility patent rights to beawarded. For example, all countries’ patentrights prohibit the awarding of patent rightsfor elucidating the “laws of nature”. Thus,the fact that scientists have described lawsof chemistry and physics, natural selection,or other such natural laws, does notrender them as products of a person’s intellectin intellectual property law. However,an innovation that applies one of these lawsmay well qualify for protection. Similarly,in many countries a new plant variety, avariety, type or breed of livestock used forfood production, or computer softwarecannot be the subject of patent rights. Japanand the United States are notable exceptionsin this regard. While the EuropeanUnion (EU) (Directive 98/44/EC of theEuropean Parliament and of the Council,1998 on the legal protection of biotechnologicalinventions) does not permit thepatenting of plant and animal varieties,it does allow patents for inventions concerninganimals or plants the feasibility ofwhich is “not confined to a particular plantor animal variety”. The fact that the term“variety” is not well defined in the contextof animal breeding means that the scope ofthis exemption is far from clear.Irrespective of whether one is dealing withpatent rights, plant breeders’ rights (PBRs),copyrights, trademarks, trade secrets, etc.,the type of IPR sought or awarded varieswith the type of intellectual asset over whichprotection is being sought. It is also possiblefor one asset to be protected by severaltypes of rights, depending upon the law inthe applicable territory. For example, it isnot unusual to have “double protection”,i.e. for an invention to be patented and theproduct resulting from that invention to betrademarked. The trademark for Aspirin®for the formerly patent-protected acetylsalicylicacid is such a case in many parts of theworld. It is not uncommon for a process ora piece of machinery to be treated in a similarfashion. This situation pertains to IPRsassociated with MAS, two notable examplesbeing “Selective restriction fragmentamplification: a general method for DNAfingerprinting”, a patented process pairedwith rights associated with the AFLP®trademark or the “Methods for genotypingby hybridization analysis” patent and theassociated DArT trademark.PatentsPatent rights are awarded on the basis ofclaims based on the inventor’s description