Plants bred using 'new biotechnology', such as genetic engineering, are being well protected under the patent system in Japan. However, plants bred using 'old biotechnology' often encounter difficulties in clearing patent examination standards related to inventiveness and are rarely patented. The applications for plant variety protection (PVP) are rising rapidly such that the number of applications in Japan is among the highest in any country. However, despite the fact that instances of actual infringement are not uncommon, plant breeders' rights are often not enforced. Therefore, breeders are selecting and combining various forms of protection such as patents, variety registration, trademarks, trade secrets, biological forms of protection and other forms of protection, depending on individual circumstances such as the type of breeding technology employed, the size of their enterprise and the marketability of their product.

Under the Japanese Patent Law, both 'general plants' (i.e. plants not limited by species or variety) and plant varieties can be patented where general requirements for patentability are met.

Transformant plants are patented without difficulty in accordance with the following guideline:

A transformant can be described by identifying either (i) a host or (ii) a gene to be introduced (or recombinant vector). This provision clearly allows for claims to general plants.

Example 1 - A transformant incorporating a vector comprising a gene encoding a protein having the amino acid sequence Met-Asp- . . . Lys-Glu.

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