Can I use patented technology under the ILP?
The Standard License Agreement provides the licensee with the right to use patented material such as patented commercial varieties for further breeding, and the right to commercialise the newly bred varieties. The ILP is not about technology licenses. In other words, if the patent also covers a technology the Standard License Agreement does not include the right to practice any technical step nor to use any other material (including but not limited to molecular markers or DNA sequences) claimed in the patent.
However, a patent may also cover generic methods and processes of breeding and seed production. In such a case, the license under the ILP includes the right to use such generic methods and processes of breeding and of seed production claimed in the patent in relation to the claimed plant material. It is understood that one patent can cover both plant material (which is included in the license) and non-generic technology, which is excluded from the license.
Take for example the following three claims:
- A Broccoli plant or parts or seeds thereof comprising in the genome an impaired version of the “Disease X Resistance (DXR) Gene” encoded by SEQ ID No: 1, wherein said impairment provides resistance against disease X.
- Use of a Broccoli plant of Claim 1 in breeding a new Broccoli variety.
- Use of a oligonucleotide of SED ID: No: 2 in a method of oligonucleotide mediated mutagenesis to obtain a Broccoli plant of Claim 1.
Claim 1 is included in the license. As Claim 2 covers breeding in general, the ILP license includes a right under Claim 2 to apply generic breeding methods and processes. Claim 3 however refers to a specific method to make the plant of Claim 1. This method is not included in the license.