BioEssuys Vol. 2, No. 6 243

Rights and Wrongs

Laws dealing with the protection of plant breeders’ rights and those dealing with industrial patents are set to come into conflict. This will happen when the first plants with engineered DNA are brought into cultivation. Those who have either done the engineering or paid for i t may reasonably expect appropriate reward. But the reward may be diminished because, once the plant with the engineered gene is released into agriculture, there is no restraint under present rules on another breeder incorporating the gene into his new variety, so taking a free ride on someone else’s science.

How does this anomaly arise? Plant breeders’ rights are generally framed in national legislation to accord with the 196 1 Convention Internationalpour lu Protection des Obtentions Vkgetules (the Paris Convention). It is generally required that if a plant genotype gives a phenotype which is distinct, uniform and stable then the variety can be protected. The owner of the rights can claim payment from all those who are licensed to multiply its propagules (seeds or vegetative parts). Usually a licence and the base multiplication material cannot be refused to a prospective licencee.

Most critically, however, the variety once released can be used by anyone as a parent in further breeding programmes without benefit accruing to the breeder of the parental stock. These arrangements have been remarkably successful in allowing the pyramiding of beneficial genes to permit the continuous commercial progression of crop genetypes. But the procedures may block further progress when considerable financing is necessary if entirely novel manipulated DNA is to be put into crop plants.

Here we need to take account of the benefits of patent law. Inventions are patentable when they are new, involve an inventive step and have industrial application. They may relate to a product or a process and must permit the solution of a specific problem or need. Only those licensed by the inventor may use the patented process or product. Essential to the newness of a patent is the requirement that it should not have been anticipated by ‘prior art’.

By contrast, a protected plant variety of considerable commercial utility may have been created by well-established methods and gain its advantages not from new characters but from assembling in a new way arrays of characters drawn from previously existing varieties. Payment for using a variety is more like the payment for the performing rights on a piece of music or for the copyright on printed matter.

The October 1984 Symposium of the International Union

for the Protection of New Varieties of Plants was devoted to the problem of reconciling the two systems. Clearly many are aware that the use of recombinant DNA techniques must be made worthwhile in crop improvement. The Union performed a very useful function in bringing into the same auditorium and coffee shop those concerned with the two systems and with contrasting attitudes that reflected their backgrounds.

As a minor participant in the debate, which was primarily between those involved in the legislative framework, I was worried that the rules often seemed to be an end in themselves and more important than activities they are designed to encourage. Benefits to agriculture, both in the developed and the developing world, often seemed somewhat remote.

Clearly the rules must be adapted to match the new opportunities. We have patents to stimulate and reward invention and to regularize its commercial exploitation. Plant breeders’ rights exist to encourage the investment of intellect, energy and money in variety production so that farmers can produce crops with optimal genetic efficiency. The two forms of stimulation and regulation should not frustrate each other.

It seems obvious that the development of new plant genotypes by the creation of genes unique to a crop species should be treated as an invention subject to patenting like any other invention. Especially the inventor engaged in this step need not concern himself with the numerous other attributes which must be attended to before an agriculturally effective variety can be released. The latter is the concern of the breeder.

There should be only one difference in plant inventions from the way the use of industrial patents is regulated. It is that the use of the ‘invented’ gene should be open to all who wish to use it in their breeding programmes with that crop. Those claiming a licence to use the new gene should make due payment to the inventor. The level of the payment might need to be subject to regulation. This would get over the potential problem of the obstructive use of exclusivity by the owners of plant genetic patents. In this way the special law of plant patent would move towards plant breeders’ rights.

Legislators and lawyers, it’s up to you.

R A L P H R I L E Y formerly with the

Agriculturul and Food Research Council, London WIN 6 D T, U . K .

Subscriptions: BioEssays (ISSN 0265-9247) is published by Cambridge University Press. Volume 1 is published in six monthly issues trom July 1984. Thereafter two volumes of six parts each will be published each year. The subscription price includes air speeded delivery to most countries. Dollar prices apply to USA and Canada. Institutional subscriptions include a storage box and a volume index. Individuals must order direct from the Press and certify that the journal is for their personal use. One volume €32.00 ($68.00) for institutions, €1 5.00 ($24.00) for individuals. Two volumes €63.00 ($1 35.00) for institutions, f28.00 ($48.00) for individuals. Single parts €5.00 ($10.50). Special Offer volumes 1-3 (1984/1985) can be ordered at the special rate of €70.00 ($1 50.00) for institutions, f32.00 ($54.00) for individuals.

Orders, which must be accompanied by payment, may be sent to a bookseller, subscription agent or direct to the publishers: Cambridge University Press, The Edinburgh Building, Shaftesbury Road, Cambridge CB2 2RU. UK. Orders from the USA or Canada should be sent to Cambridge University Press, 32 East 57th Street, New York, NY 10022, USA. Application to mail at second class postage rates is pending at New York, NY. and at additional mailing offices. POSTMASTER: send address changes in USA and Canada to EioEssays, Cambridge University Press, 32 East 57th Street, New York, NY 10022.