The Rural Voice, 1989-03, Page 27that goes to make up a good variety
could carry its own royalty payment.
Patents would stack up. A single seed
could eventually include the cost of
several royalty payments.
Park disagrees: "The marketplace
will determine what the value of those
inventions are. If they don't increase
the farmer's net, they won't sell."
Back to Pioneer's soybean 0877:
"Somebody had to start somewhere,"
Park says. But in some ways it's not a
good case with which to test Canada's
patent law. Both the Patent Office and
the Federal Court refused the patent
application partly because Pioneer
failed to prove that a truly inventive
step was required to develop 0877.
Patents are granted only for inven-
tions, not things that anyone "skilled
in the art" could do. And although no
one would suggest that nature would
have developed Pioneer's soybean on
her own, 0877 is a pretty conventional
crossbred variety by today's plant -
breeding standards.
The Supreme Court is expected to
deliver a broader judgement than the
other courts, considering not only the
patentability of 0877 but of plants in
general. Section two of the patent
regulations says that "any new and
improved art, process, machine, manu-
facture, or composition of matter" is
patentable. Do the seeds, pods, and
plant of Pioneer's soybean fit into this
definition?
If the court decides that plants are
"patentable subject matter" in Canada,
the only way to reverse that decision
would be for Parliament to amend the
Patent Act to exclude plants and
animals specifically.
That could take a while. The
Patent Act has, after much debate,
been amended recently. It's not likely
that the government is going to put
another rehash of the act at the top of
its priority list. The controversy raised
by the recent change in patents for
pharmaceuticals will make them even
less eager.0
RIGHTS AND PATENTS: THE DIFFERENCE
Most plant breeders and
farm groups approve of the Plant
Breeders' Rights legislation as
proposed by Agriculture Canada.
Those opposing PBRs do so on the
grounds that they will lead to plant
patenting.
The use of patents to protect
investment in crop improvement
is a newer concept than PBR, and
many farm groups don't yet have a
firm position on the issue, but most
plant breeders are worried that
patents will impede progress and
give too much control over the seed
market to a few giant agro-chemical
and seed companies.
Plant Breeder's Rights:
• allow "plant back" of part of a
crop grown from protected seed
• allow the offspring of protected
seed to be sold as common seed as
long as the varietal name is not used
• allow the free use of any protected
variety by other breeders to improve
it further and create another variety
• protect only varieties, not generic
traits
• are administered by Agriculture
Canada
• require new legislation, and there-
fore must be publicly debated and
passed by Parliament
Patents:
• do not allow the offspring of pat-
ented seed to be "planted back" by
farmers
• do not allow the offspring of pat-
ented seed to be sold as common
seed
• require that a plant breeder wishing
to improve a patented plant would
have to get permission from, and pay
a royalty to, the original patent
holder
• protect not only finished varieties
but plant parts and traits; one patent
could affect many varieties of a crop
• could stack up so that the cost for
seed of one variety could include
many dependency royalties for traits
included in the variety
• are administered by the Consumer
and Corporate Affairs Patent Office
• may be brought into force by the
court, without public debate
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MARCH 1989 25