The Legal Protection of New Mushroom Strains with US Patents for Commercial Production and Marketing Strategies

摘要

Breeding is a dynamic process, mingling the old methods with new molecular technology to its best advantages. Its effectiveness is shown in the protection of the intellectual property (IP) and ownership of new mushroom strains. IP provides economic incentives for mushroom breeding and the spawn industry, and a level playing field for producers. In the United Sates (US), once a desirable new mushroom strain is developed through breeding or strain improvement, the biologically pure cultures of the strain should be preserved, and legal protection of the strain should be pursued through a plant patent and/or a utility patent. In 1932, Louis F.Lambert patented a white Agaricus bisporus strain. Since then, 15 US plant patents for new and district mushroom strains have been granted. The first utility patent for new mushroom strains was issued in 1986 to Cetus Corporation for pure cultures of Coriolus versicolor, Lenzites betulinus and Polyporus obtusus which are capable of producing pyranose-2-oxidfase enzyme. Since then, there are 27 US patents granted for new mushroom strains,and there is a definite trend to increased patent productivity. A utility patent offers broader coverage than that available under Plant Patent Act. A plant patent is limited to a single claim; a utility patent is not so limited. In the US, the most usual types of patent claims involving mushroom strains are claims to (1) a process of producing a "new" mushroom strain (breeding claim), (2) a "new" mushroom strain as produced by the defined process (product-by-process claim), (3) a "new" mushroom strain per se deposited with a recognized public depository (strain deposit claim), (4) a " new" useful product of mushroom growth (composition claim) ,and (5) a "new" or improved method, apparatus or substrate to utilize and exploit the special biological properties for manufacture of useful products (method or use claim). The US patent holder has the right to exclude others from reproducing the mushroom strain, and from using, offering for sale, or selling the strain so reproduced, or any of its products or derivatives, throughout the US, or from importing the strain so reproduced,or any of its products thereof,into the US. For example,in March 2010,Amycel Inc. filed a lawsuit in the California Northern District Court, claiming patent infringement and unfair competition against L. F. Lambert Spawn Co. ,based on the US Patent 7,608,760 issued on October 27,2009 for a new hybrid brown Agaricus bisporus strain ATCC PTA-6903.