Some Legal Issues Caused by Identification ofWild Herbal Plants- Interpretation and Perspectives of Patent Law -Professor of Law, Meiji University, Tokyo, Japan;
Attorney at law, Hayabusa Asuka Law Office, Tokyo, Japan

Takato NATSUIPresupposition (Definition)► What is synonym?

 Synonym means an alias name of a physically same specific plant which
has a concrete scientific name (Latin name).
► What is chromosome?

 Chromosome is an organized structure of DNA and proteins in plant cells. A
specific plant has a unique number of its chromosomes.
► What is DNA?

 DNA is a shortened name of Deoxyribonucleic acid. DNA contains thegenetic instructions used in the development and functioning of living
beings.

Presupposition (Definition)►

What is plant related patents?
Plant related patents may involve several types of patents on:

1. Artificially made new plant species, including by traditional breeding and bio technologicalcreation and so on;

2. Artificially made new plant varieties, including by traditional breeding and bio technologicalcreation and so on;

3. Methods for creation of said new plant species (1) or new plant varieties (2);

4. Plant extracts or extracted components;

5. Methods for said extraction (4);

6. Application of said plant extracts or extracted components (4) [e.g. cosmetics,Pharmaceuticals];

7. Application of something applicable to a specific plant [e.g. herbicidal compositions];

8. And other related patents.

Hypothetical patent for explanation► Pomato: new variety of plants made by biotechnology► Pomato is a artificial hybrid of Tomato DNAand Potato.
► Fruits of Pomato are red, fruity and verylarge.
► Tubers (roots) of Pomato are white, sweet,
soft and very large.

Identification by Common name► Which is Tomato or Potato?

Identification by Latin name► Tomato

 Accepted Latin name: Lycopersicon esculentum Miller var.
esculentum
 Synonym: Solanum lycopersicum L.
 However no one can find pure wild Lycopersicon esculentum var.
esculentum.
 Most of existing plants are Lycopersicon esculentum cv. or
Lycopersicon esculentum hybrids (Solanum lycopersicum cv. or
Solanum lycopersicum hybrids).

► Potato

 Accepted Latin name: Solanum tuberosum L.
 However no one can find pure wild Solanum tuberosum.
 Most of existing plants are Solanum tuberosum cv. or Solanum
tuberosum hybrids.

Questions► Does anyone know Lycopersicon esculentum cv.

Momotaro? This cultivar of Tomato is the best
Tomato in Japan.
► Does anyone know Solanum tuberosum cv.
Danshaku? This cultivar of Potato is well known
cultivar in Japan.

► No one can know how many cultivars of Tomato

and Potato exists all over the world.
► Because there have been thousands of nonregistered cultivars.

However► A lot of patent which claims anddescriptions have been identified bycommon name like as Tomato or Potato.

Hypothetical patent again► Pomato: new variety of plants made by biotechnology► Pomato is a artificial hybrid of Tomato DNA
and Potato.
► Fruits of Pomato are red, fruity and verylarge.
► Tubers (roots) of Pomato are white, sweetand very large.

And also► Every plant has a unique DNA sequences.
► Every plants involved in a same Genus may sharesame piece of DNA sequence but not completelyequal.
► In species level, same to Genus level.
► Therefore Especially, in the case of plant extract patent or plantcomposition patent, it shall be examined whether:► a specific plant which has a specific amino-acid sequence isactually containing a function of such extraction or not?
► other similar plants such as another cultivar which has a bit
different amino-acid sequence are actually containing a functionof such extraction or not?

My results►

A name of a specific plant might be defined by someone subjectively.

►Even if the specific plant exists physically, the name of the plant is only a name but not
the plant itself.

►If a specific plant can not be identified by the name then the legal validity of a patent
which patent claims were described using the plant name may become in doubt.

►Identification by description of amino-acid sequence involved in DNA of a specific plant is
the most concrete way.

►Confusion in the botanical nomenclature and synonymy of plants can be resolved byadopting DNA based identification.

►Management of plant DNA database and data matching proceedings of synonyms andDNA data of a specific plant will be very important matter in the near future, because if
only a specific nation can govern such a database system then the nation may be able tocontrol every plant related patent at the same time.

►The DNA database system should be owned and managed by a neutral organization.

Thank you for your attention

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