Frances Salisbury is a Patent Attorney at Mewburn Ellis LLP. She has a PhD from University of Edinburgh, where she researched the role of phytochrome photoreceptors in root development in Arabidopsis thaliana. She agreed to guest post on intellectual property rights in plant science – enjoy!
Patents and other intellectual property rights can be a controversial topic in the area of plant research, and much confusion exists about what protection is available, whether such work should be protected, and how this impacts on academic research. In this article, I hope to provide a very brief introduction to some of the different intellectual property rights that are available for plant research, particularly thinking about aspects that might be protectable by a patent.
So, why would you want to protect your plant research? Essentially, licensing and selling intellectual property rights can be used to create revenue for future research, or might be exchanged for the right to use other people’s ideas and technologies in your research. Many organisations and researchers consider intellectual property rights to be valuable assets.
Certainly, if you are thinking of working with a commercial partner, or sharing information or expertise with them, it is worth thinking about whether you should have protection in place before you talk to them, to try to ensure that both sides will benefit from the collaboration. Your institute’s technology transfer team will be able to help you with assessing whether you could protect your work with an intellectual property right.
Researchers often favour publishing over patenting, but there is no reason why the two cannot be done together, without delaying publication. If you think you have something that might be patentable, I would suggest approaching your technology transfer team to talk it through at an early stage, and particularly if you are preparing a manuscript. Patent attorneys are used to working with research scientists to draft and file patent applications before any disclosure of the work (which may be detrimental to the patent process), but without delaying manuscript submission or preventing conference presentations or posters, so you should not assume that patenting your idea will hinder publication. Indeed, many patent attorneys have once been research scientists themselves, so are well aware of the desire to publish without hindrance.
What might you protect? Well, a number of different types of intellectual property right are available to plant scientists, depending on what it is that is to be protected.
Individual plant varieties may be protectable by Plant Variety Rights (PVRs), provided that they are clearly distinguishable from known varieties and their traits are stable across generations. This can be often used to protect food crops, and can be used to stop others from propagating the protected variety. Registered Trade Marks may also provide useful protection for particular varieties. For example, BraeburnTM apples are protected by a Registered Trade Mark which can be used to stop unauthorised people from selling their apples as BraeburnTM, even if they are from the same variety of tree as BraeburnTM apples, and the PVR could be used to stop unauthorised people selling BraeburnTM apples, or from propagating new BraeburnTM fruit trees from cuttings.
For many plant biologists, patents will be a more appropriate route to protection for their ideas.
For example, for a concept that is broadly applicable to a group of plants (rather than to one specific variety) patent protection might be available. Monsanto’s Roundup ReadyTM plants are the subject of a number of different patents which could be used to stop the development of further glyphosate resistant plants, regardless of the plant genus. Generally, any agronomically useful modification may be patentable, such as the introduction of a gene that imparts drought resistance, improves nutrient yield, or acts as an indicator of an environmental contaminant, provided that modification is new and not obvious from what is already known in the technical field. Patent protection may cover the method of generating a transgenic plant as well as the transgenic plant itself and the commercial end product from the plant. However, traditional plant breeding methods involving crossing and selection of plants are not patentable.
Patent protection is not just available for plants, and plant biologists might want to think about protection for newly isolated proteins which might have industrial, medical or cosmetic applications. So, for example the identification and isolation of a new enzyme with anti-cancer or skin moisturising properties might be patentable. Use of plants and plant cells as factories for particular compounds like medicaments or nutrients might also be protectable.
New techniques and tools developed in the course of research may also be patentable. For example, if a researcher has had to develop a new or improved technique for extracting a protein from plants, or a new way of synthesising it in bacteria, these could be patentable. Similarly, new plant culture systems, or new ways of producing plants might be patentable, providing they involve more than just the application of traditional crossing and selection techniques.
Your research institute’s technology transfer specialist will be able to advise you as to whether an idea or aspect of your research may be patentable, and can help with working with commercial partners. If in doubt, it is best to think about whether your work might be protectable at an early stage, and certainly before you publish your work (including any public online disclosure of your work, however informal it may seem), or give a presentation. Who knows, it might lead you and your research down a new and exciting pathway.
Image credits: Protein Z by Jeff Rowe and Braeburn Gelsdorf 2 by Slick, both via Wikimedia Commons; and Pipet by 123dan321 via stock.xchng.
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