marker-assisted selection in wheat

422Marker-assisted selection – Current status and future perspectives in crops, livestock, forestry and fishand the services of a professional trademarksearcher or attorney should be soughtbefore proceeding with the registration ofa “new” trademark.Plant breeders’ rights aspectsBreeders using basic MAS protocolswith non-proprietary breeding materials(e.g. germplasm that does not qualify as an“Essentially Derived Variety” [Wendt andIzquierdo, 2001]) generally do not need tobe concerned with using materials coveredby PBRs for breeding purposes.Contractual aspectsIt is very important that licences, contractsand agreements are monitored for restrictionsas these often contain provisionsdealing with IPRs that last until a contractexpires or is renegotiated. Permission to useequipment and associated reagents is normallygranted as a licence granted as a partof the purchase price. However, this typeof licence may often contain limitations onthe use of equipment, reagents and kits fornon-research applications. As an example,and as stated in its legal information Webpage, Applied Biosystems has an exclusivelicence with Roche/Hoffman-La Roche forits PCR patents: “Applied Biosystems isthe exclusive licencee of Roche MolecularSystems, Inc., and F. Hoffmann-La Roche,owner of the basic PCR process and reagentpatents, for the field of research anddevelopment, and for applied fields suchas quality assurance and control, environmentaltesting, food testing, agriculturaltesting (including plant disease diagnostics),forensics and identity testing in humans(other than parentage testing), and animalidentity and breeding applications.” Thismeans that when a researcher buys (orhas legal access to) and uses an AppliedBiosystems machine, the rights to use thismachine for certain specified purposes(rarely commercial) are included in thepurchase agreement. Note, however, thatthe use of kits or other products of AppliedBiosystems that involve any processes orreagents licensed from Roche/Hoffman-LaRoche to carry out MAS is not specificallymentioned as a “field of use” in the terms ofthis licence. While it could be assumed thatuse for MAS is possible under the AppliedBiosystems licence, if it was considerednecessary to have the lowest probable levelof risk associated with the use of equipment/reagentsfor MAS, then legal advicein the jurisdiction of the user should besought.An equipment or reagent licence couldalso contain provisions for what are called“reach-through” rights. These arise whenimprovements are made to an existing technology.When such innovations come aboutthrough use of the existing technology therights to them may have to go back to theowner of the original existing technology.Such a transfer of sharing of the rights iscalled “reach-through rights”. Some argue,for example, that the requirement in someOpen-Source licences for improvementsgoing back to the original creator of thesoftware for distribution are a form of“reach-through”.Agreements to purchase and “packageinsert” licences should therefore be routinelychecked to ensure that these sorts oflicence are avoided.MTAs can also cause problems,depending upon the conditions that areset down in such agreements. Laboratorypersonnel need to make sure that MTAsare only signed by persons authorized todo so and that efforts are made to checkMTA language for provisions that restrictor interfere with the intended use of thegermplasm that is produced using MTA-