Some five or six years ago a miniature variety appeared of poinsettia, a plant whose gorgeous red blooms flower around Christmas time, enabling it to be brought in from the garden and grown as an indoor potted plant.

While opening up a Taiwan market of some half a million plants per year, this "tabletop" poinsettia also broke new ground in intellectual property rights.

Dwarf poinsettia were originally developed by the Paul Ecke flower company of America and were imported into Taiwan through a local florist. Eyeing its market potential, a lot of local growers bought these poinsettia and grew their own from cuttings, thus dramatically undermining sales of the imported flowers a year later.

Counterfeiting is nothing unusual and occurs in all fields, but whereas Taiwan has patent, copyright and trademark laws to protect manufacturers' intellectual property rights, the law on patents only covers the cultivation method for new varieties of plants. In other words, the development technique itself cannot be copied, but if the variety is grown for profit by other methods such as mound layering, cuttings or even from seeds, it is not against the law.

Furiously angry, the company's only option was to refuse to let Taiwan clients have anything to do with their future flower varieties.

Another dispute over new varieties that is well known to the agricultural community involves a local private firm, the Known-You Seed Co., which has twice won U.S. awards for its new varieties of melons.

Known-You developed a new variety of watermelon called Red Bell which commanded annual seed sales of NT$6 million due to its exceptional sweetness. Eventually the parent plants which bred the seeds were stolen from farms, and huge quantities of the seeds appeared on the market at half price since the rival producer had no development or publicity expenses. By the next year Known-You's turnover for Red Bell seeds had fallen to barely a third of the previous year's.

It's not difficult to judge whether a variety has been stolen or developed independently--without a breeding pedigree you're in trouble. But in the absence of adequate legal protection, Red Bell wasn't covered by patent and the case against the rival producer was dismissed by local prosecutors.

A few days after this decision, nine more new varieties were stolen from Known-You one after the other. Known-You's chairman Wun-yu Chen, himself a breeding expert, comments wryly that even Council of Agriculture officials had told him there was nothing for it but to hide his parent plants better.

As agriculture becomes more industrialized and technology-led, more and more pesticides, fertilizers and farming equipment that are decisive for agricultural production are being developed. Like any other products, these technologies are also protected by national patent laws. Only breeding technology has drawn the short straw.

Plant breeders estimate that breeding a new variety takes an average of five or six years, and it has been known for it to take ten or twenty years to develop one successfully. Yet these researchers' efforts are still not accorded the same level of protection as other intellectual property.

The main reason is that private firms used rarely to be involved in improving plant varieties. In Taiwan for instance, crop breeding experimentation has always been government-financed and carried out by government agencies such as the Agricultural Research Institute and the Agricultural Improvement Farm. The aim of breeding new varieties was to benefit farmers, who sometimes had to be persuaded to introduce them. The idea of applying for patents never entered anyone's head.

"Produce breeding technology often plays a major role in developed countries' aid programs to the Third World." According to Tsou Chih-sheng, deputy director of the Asian Vegetable Research and Development Centre at Shanhua, Tainan county, agriculture has always been handled more freely than industry or commerce.

While government breeding efforts have tended to concentrate on basic cereals such as rice and wheat, economic growth and rising living standards have brought increased consumer demand for high-profit horticultural products like flowers and fruit. Farmers now devote more growing area to these, new varieties are being introduced, and private-sector involvement in variety development is on the rise.

It's hardly fair if privately developed products, researched with great effort, just become public property once they're released. So in America, Japan and European countries where there is more private-sector involvement in breeding, there is a growing tendency to acknowledge the need for patenting new plant varieties to guarantee reasonable earnings.

In 1954, all of 160 years since patent laws were introduced, the United States specified that patent protection could be applied for in the case of all invented or developed mutant, cross-bred and new plant varieties. As of January last year U.S. patents had been issued for over 7,000 varieties of plants.

In the 1970s a group of seventeen nations including the United States, Germany and Holland founded the International Union for the Protection of New Varieties of Plants (UPOV) to guarantee patent rights for their plant varieties.

In December 1988 Taiwan's agricultural authority, the cabinet-level Council of Agriculture, placed new plant variety patents on a legal basis with its "Law on the Management of Plant Seeds and Seedlings," Article 2 of which deals with registration of names and patents for new varieties. Undeniably, however, the birth of this legislation was intimately tied to outside pressure.

In Taiwan today plant breeding remains mainly the province of government agencies, although a few private firms such as Know-You are involved in the development of horticultural varieties. But there is a growing demand for flower, fruit and vegetable seeds and seedlings due to the government encouraging farmers to switch production away from rice, and these must still be largely obtained through importation.

Since the concept of patenting new varieties is still not universally accepted, some advanced countries are extremely cautious about exporting varieties they have spent money to develop.

According to Robert T. Y. Hong, general manager of seed importers Happy North Ltd., some foreign seed companies tend to wait till they've obtained a fair return on investment, or till newer varieties appear, before they will sell to Taiwan; others seek to frustrate would be counterfeiters by selling only cut flowers; and some are willing to sell seed sources, but only for astronomical royalties. . . . The purchasing process may involve indirect means, such as going through third countries; in the case of many pea and lily varieties, American firms are only willing to sell to Japan where seed patents are protected, and Taiwan buyers must then pay more to obtain them from the Japanese.

Counterfeit varieties do still crop up in Taiwan due to some local dealers and growers either being unwilling to pay over the odds or clinging to outmoded attitudes and helping themselves to samples to grow "for free."

Strawberry picking has become a popular leisure activity for city dwellers, and no doubt many people have picked the big red "Taoyuan No. 1" strawberries at some pick-your-own strawberry farm. This strawberry was developed in Japan and a Japanese patent has been applied for. Local growers also used to carry plants away lock, stock and barrel after they'd featured in Dutch exhibitions in Taiwan aimed at opening up the local flower market.

One time when Robert Hong, a frequent visitor to European and American market gardens, approached an American dealer about a hothouse hoist system, he was bawled out as soon as they found out he was a seed dealer from Taiwan.

Now patent protection for new plant varieties has finally been tabled for ROC-USA trade talks, the reason being that Taiwan's private-sector breeding technology is growing more and more sophisticated.

Many plants such as poinsettia can be counterfeited by non-sexual breeding methods like taking cuttings, but this is not always successful. When it comes to varieties that can only be reproduced sexually by seed crossing, as in the case of gourds such as watermelon and cantaloupe melon, for example, good genes are not retained in the seeds and it is necessary to breed them from parent plants with good genes. So counterfeiting is no worry so long as the parent plants are safe.

When prominent melon breeders Known-You wanted to grow large quantities of parent plant seeds, due to the firm's limited growing area they had to ask other farmers to grow parent plants and gather the seeds on their behalf. Since the parent plants were often stolen, the company had the added expense of growing the male and female plants separately.

As genetic engineering develops, even if the parent plants are grown poles apart people could still breed from tissue cultures taken from the fruit. In future, many plants may be grown by tissue culture instead of in the natural way.

Many breeders and growers in Taiwan already have tissue culture facilities, and al though this is still an expensive method it has unlimited possibilities for the future. According to Chen Shih-hsien of the Council of Agriculture's horticulture department, the United States is urgently requesting seed and seedling patents as a precautionary measure.

Outside pressure apart, another factor encouraging legal protection for new plant varieties is future prospects for the local seed and seedling industry.

Taiwan-developed varieties are frequently the object of envy by other countries. For example, the Typhone No.4 and No.5 pineapple varieties were privately introduced into the Philippines and were then exported back to Taiwan, to the detriment of the local pineapple market. Patents for seeds and seedlings is paving the way for Taiwan's entry into UPOV, and will enable local breeders to apply for patents from its member nations.

In the past, countries used to freely exchange the original or improved varieties kept in their seed source bank, but in future this open-handed attitude will change due to international farming competition.

Since America introduced soybean varieties to Brazil, Brazil has today become America's biggest rival in the soybean market; and the Taiwan o-chang t'eng, now improved by American and Dutch growers into an excellent ornamental plant, is making a comeback on the Taiwan flower market.

Despite Taiwan's small size, its tropical and sub-tropical climate and unique geography mean that it has a rich flora, many original varieties of which retain excellent characteristics. We need the government to set up a seed source bank to preserve these, while at the same time encouraging private enterprise to develop new improved varieties.

Seed and seedling development and improvement is resulting in the appearance of varieties that are more disease-resistant, pest-resistant and tolerant of drought, and with features such as greater yield or superior quality. This indirectly contributes to more efficient farm production and benefits the farming population as a whole.

Taiwan's future development plan calls for zero growth in the agricultural sector--certain labor-intensive, uncompetitive and polluting farm products will decline, while more effort will go into technology-intensive, highly competitive areas like the seed and seedling industry.

In the past, most nursery companies in Taiwan acted mainly as agents, either being commissioned to gather seeds for overseas firms or handling seed and seedling imports. But a growing labor shortage and rising wages mean Taiwan can no longer compete with Southeast Asia and mainland China. "We can only survive by developing new varieties ourselves," says Wun-yu Chen, who 20 years ago felt the need for private sector participation in breeding work and now sees the granting of seed patent protection as the best way to encourage it.

Professor Kuo Hua-jen of National Taiwan University's department of agriculture views seed patent legislation as being more important for the encouragement it provides than for its legal sanctions against offenders. The Known-You company has developed over 200 varieties, but without being able to apply for patents has just had to suffer in silence whenever they were stolen. Such a state of affairs can only affect private investment willingness in this area. "The idea behind variety patent protection is to create an environment for more investment in breeding research," Kuo Hua-jen says.

In common with other countries where separate legislation applies to staple grains and cereals, Taiwan does not intend to include grains and cereals under its patent laws so as to prevent the supply and distribution of such staple commodities to be controlled by foreign countries or large seed companies.

But many conditions need to be met before seeds and seedlings can be fully protected. The main thing is to set up an index of all existing varieties with a list of characteristics which can be used to determine whether products that patents being applied for are genuinely new. This is a huge task, and the Council of Agriculture has already spent two years just compiling varieties of the gourd family. Patents for many other new varieties cannot be applied for because of a lack of comparative data.

This failure to live up to the ideal of seed patent protection is due to lack of manpower. According to Kuo Hua-jen, the Council of Agriculture only has two personnel on the job, compared to the over 400 seed patent personnel Japan employs in 15 regional offices.

Seed patenting is the trend of the future, and no doubt patenting of new animal species will be the next issue on the agenda. With the major role played by microbacteria in medicine and pollution prevention today, the United States, which has invested hugely in microbacteriological research, is already sounding out the idea of global patents for microbacteria.

In addition to preventing counterfeiting of flowers and fruit, we may have to legislate against "counterfeit" chickens, ducks, fish and meat flooding the market, not to speak of all the "counterfeit" microbacteria filling our world!

[Picture Caption]

Many of these tiny little seeds are new varieties which breeders have spent years and years developing. This is what plant variety intellectual property rights are all about. (photo from Sinorama files)

(Right) Prospects for plant seeds and seedlings are buoyant; seeds for watermelon varieties developed by the Known-You company are exported to many countries.

Plant breeding is a technology-intensive industry which can enhance the level of agricultural production.

A cantaloupe melon selection gets under way! Developing a superior new variety can increase growers' earnings.(photo from Sinorama files)

Mouth-watering new varieties of fruit are constantly being introduced, t o the benefit of consumers everywhere.

Dwarf poinsettia from the United States have been "counterfeited" by growers using cuttings.

（Right） Prospects for plant seeds and seedlings are buoyant; seeds for watermelon varieties developed by the Known-You company are exported to many countries.

Plant breeding is a technology-intensive industry which can enhance the level of agricultural production.

A cantaloupe melon selection gets under way! Developing a superior new variety can increase growers' earnings.（photo from Sinorama files）

Mouth-watering new varieties of fruit are constantly being introduced, t o the benefit of consumers everywhere.

Dwarf poinsettia from the United States have been "counterfeited" by growers using cuttings.