Scientific disagreement about criteria for accurate classification of similar, if not seemingly identical, cultivars has led to spirited debate in legal and agricultural communities. The lack of universally acceptable working definitions of functional genetic distance and difference, as well as insufficient data on genetic diversity, has made it difficult to define a legal framework for cultivar discrimination. In order to satisfy the “distinctness” criterion during plant patenting, genetic diversity and difference must be described unequivocally in measurable terms. Moreover, the number of markers or other characteristics needed to identify the “nonobvious” nature of the cultigen will determine the breadth of protection under the patent. Increasingly, patent examiners must interpret novelty and distinctness in terms of molecular as well as gross phenotypic (flower color, plant habit, etc.) information. A description of difference using molecular markers may be more difficult compared to a description of function (i.e., how many markers are required to assign difference). Consequently, the effective use of molecular marker information in the legal community will require scientific agreement on the meaning of genetic distance as it relates to genetic difference.
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