Plant Variety Protection
In the U.S., new plant varieties can be protected in three different ways, depending on the specifics of the plant.
 |
| Photo courtesy of University Communications |
Plant variety certificates are issued by the U.S. Department of Agriculture (USDA) rather than the U.S. Patent and Trademark Office (USPTO). They protect sexually propagated plants, tubers (since 1994) and F1 hybrids (since 1994). Plant variety certificates have also been expanded to include new plant varieties where the "essential biological characteristics" of the original variety are retained.
Plant patents are issued by the USPTO. They protect asexually propagated plants, but tubers (potatoes, etc.) are specifically excluded.
Utility Patents
Utility patents are issued by the USPTO to protect sexually propagated plants, asexually propagated plants, tubers and F1 hybrids. In general, utility patents are considered superior to plant patents, because the claims in utility patents offer a broader coverage. Utility patents may also complement the protection offered by a plant variety certificate. Utility patents can be difficult to obtain, however, because of the Patent Office's tendency to reject new varieties for "obviousness."
Plant Variety Protection in Foreign Countries
With few exceptions, most countries overseas do not permit plant patents. Instead, they offer a protection system that is generally called "plant breeder's rights." Overall, this system is similar to the U.S. plant variety certificates, except that plant breeder's rights include almost all plant types, including sexually and asexually reproducing plants, tubers, and certain hybrids.
Plant breeder's rights are conferred by the international organization known by the French acronym UPOV. UPOV certificates are provided for in the Treaty of Rome regulations. Under the UPOV system, the actual rights and protections available in a particular country are determined by the national laws and regulations in this area.
Trade Secrets
A trade secret is knowledge that is possessed by an individual or institution and kept secret in order to prevent others from using the knowledge in a competitive manner (or for other reasons). Trade secrets can never be patented, since a patent must publicize the knowledge. A trade secret can exist in an unpublished work that is also protected by copyright.
Probably the most cited example of a trade secret is the recipe for Coca-Cola. If the formula for Coca-Cola had been patented, another manufacturer could have obtained a copy of the patent and modified the formula slightly, without a great deal of work. Moreover, the protection offered by a U.S. patent would have expired after 17 years from patent issuance (the patent life at the time). After the patent's expiration date, any competitor could have used the recipe and, by offering a lower price, could have cut into Coca-Cola's market share. While today the Coca-Cola "trade secret" may have greater value as a marketing concept than as a useful technology, other secret processes can offer great competitive advantage.
Industry makes use of trade secrets to protect manufacturing processes and other technology where the details are not evident from an examination and analysis of the final product. To maintain trade secret protection, the use of the trade secret is usually confined to a small, high-security area and to a few carefully screened individuals, each of whom may know only a part of the trade secret. These individuals must be contractually bound to preserve the trade secret.
Knowhow
Knowhow is specialized knowledge that is possessed by one person or a few people, and has commercial value. Knowhow often serves as a basis for consulting agreements where an hourly fee is typically set for the services rendered, or less frequently, a project fee is negotiated. Some types of knowhow may also qualify as trade secrets.
Knowhow is also involved in transfers of biological materials, engineering drawings, and other property. Fees often take into account the value of the cost and time that would have been otherwise expended in reverse engineering and other methods to accomplish the same objective.
