Also institutes do not only decide on how to protect their own inventions have to deal with accessing intellectual property of other inventors, and making sure that their rights are not violated. Plant breeding and plant breeding research are using a wide range of materials and technologies that have been developed by others.

Under Plant Breeder’s Rights (PBR), the breeder’s exemption allows anybody to use protected varieties for further breeding. This facilitates the legal restrictions to plant breeding. Only in countries where essential derivation is included in national law, some restrictions may apply on the commercialisation of varieties that are derived from a protected variety through repeated back-crossing, mutations or transformation.

The situation may be quite different in patents. Most patent laws know a research exemption, which may allow researchers to use patented materials and technologies for experimentation and education. However, in other countries (notably the USA) the research exemption is not included in the law, but based on court decisions. There, experimentation is limited to the freedom to research the operation of the patented invention (purely for philisophical enquiry), not to do research WITH the patented invention, and not at all to use it for the development of a new invention that may be commercialised. Since a famous Madey v. Duke University case (2002) this restriction is valid for both for-profit and not-for-profit institutions. In plant breeding this means that breeders in the USA contest the use of a plant variety carrying a patented invention (e.g. a promoter), whereas in some European countries any breeder is explicitly allowed to freely use a plant variety to produce a new variety. Only if the new variety includes such a patented component, the breeder has to seek approval of the patent holder before commercializing the new variety.

This means that a scientist who wants to be able to freely use the products of his research may have to analyse the ownership of all the processes and materials that (s)he intends to use. Such analysis may include:

• Who is the holder of the rights on a technology?
• Where are the rights valid? in most cases OECD-countries, in some cases also developing countries
• Until when are these rights valid?