Material Transfer Agreement (MTA) Germplasm and Unregistered Lines between the Department of Agriculture and Agri-Foods, Canada (AAFC) and several public breeding institutions

Subject matter	Plant Genetic Resources.
Summary of use(s)	Canada provides the Material as part of its policy of maximizing the utilization of genetic material for research. The Recipient may reproduce the seed and use the material for agricultural research and breeding purposes only. If, after evaluation, the Recipient wishes to commercialise the line, it may do so under a separate licensing agreement.
Purpose or background	This MTA relates to early access to Material with specific traits to be used for variety development, using only traditional breeding methods. Transgenic modification of the material (constituting essential derivation), and gene mining, are outside the scope of this MTA. Traits may include unprotected genes, either uncharacterized, or identified with markers. Once a variety is released, access is no longer an issue, and only the provisions of the Plant Breeders' Rights Act will effect protection, as appropriate. The inclusion of AAFC patented genes in the final product will still require a license. Proprietary genes are specifically excluded from this policy. Breeders receiving AAFC germplasm are expected to reciprocate. A more stringent MTA will apply to other situations. Foreign public breeders and all private sector breeders will require a MTA with clear non-exclusive licensing provisions for the end product. Access to material for all other purposes (e.g. essential derivation, gene mining, and genetic engineering) may be restricted, and subject to a more stringent MTA.
Contact details	Darren Ramlal, Commercialization Officer, Agriculture and Agri-Food Canada, 195 Dafoe Road, Winnipeg, Manitoba, R3T 2M9. E-mail: Dramlal@agr.gc.ca Telephone: 204-984-5707; Fax: 204-984-0797

GERMPLASM & UNREGISTERED LINES

The acceptance of the Material by the Recipient constitutes acceptance of the terms and conditions of this MTA.

INTRODUCTION
Canada provides the Material (Schedule A) as part of its policy of maximizing the utilization of genetic material for research. In accordance with AAFC's mandate as a Department of Canada, the Material is made available for agricultural research or breeding purposes subject to the additional encumbrances and rights, if any, detailed in Schedule B.
CONSIDERATION
The consideration for the release of the Material by Canada is the Recipient's sole use thereof and disclosure of the results of the same to Canada.
PERMISSION
The Recipient may reproduce the seed and use the material for agricultural research and breeding purposes only. The Recipient shall furnish Canada with performance data collected during evaluations within 6 (six) months of completion of the particular research step.
OWNERSHIP
The Recipient shall own the progeny or germplasm which are not essentially derived from the Material. The Recipient agrees that it:

(a) has no proprietary rights to the Material;

(b) shall not claim ownership over the Material;

(c) shall not sell, or offer, keep, expose, transmit, send convey or deliver for sale or agree to exchange or to dispose of to any person in any manner for consideration; and

(d) shall not seek intellectual property rights over the Material or related information which could act to the detriment of the continuing availability of the Material for agricultural research and breeding purposes
WARRANTIES / REPRESENTATIONS
AAFC makes NO warranties of any kind, express or implied, under domestic or international law as to

(a) the Material's merchantability or fitness for a particular purpose;

(b) whether use of the Material does not infringe any intellectual property rights;

(c) the safety or title of the Material,

(d) the accuracy or correctness of any passport or other data provided with the Material; and

(e) the quality, viability, or purity (genetic or mechanical) of the Material.

The phytosanitary condition of the material is warranted only as described in the attached phytosanitary certificate (Schedule C). The Recipient assumes full responsibility for complying with the Recipient nations quarantine/biosafety regulations and rules as to import or release of genetic material.
INDEMNITIES
The Recipient shall indemnify, save harmless, and defend Canada, it employees, servants and officers from any claims whatsoever (including with limitation, negligence) or losses (including without limitation, consequential damages) arising directly or indirectly from the Recipient's use of the Material.
GENERAL
The Recipient acknowledges that this MTA constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, or inducing pre-contractual representations, whether oral or written.

Schedule A - Material

Schedule B - Encumbrances / Rights

Schedule C - Phytosanitary Certificate

REPLY TO QUESTIONNAIRE WIPO/GRTKF/IC/Q.2

Question 12: Please identify and record all intellectual property (IP) related clauses in the contract. For example:

Response:

Licensing	Options to License, if any, are attached in Appendix B.
Monetary Benefit-sharing as relates to IP	Defined in License, if option is exercised.
Termination (insofar as it relates to IP)	Perpetual

Question 13: Please state whether any Intellectual Property Rights have been obtained as a result of activities carried out pursuant to the contract. For instance, whether any patents have been granted (citing, where possible, a Patent Number); whether any trademarks have been registered etc.

Response:

Two types of IP:

(a) The actual Material transferred. If a party wishes to license, it may exercise an option. Depending on the value of the IP, the licensee may wish to obtain Plant Breeders Rights;

(b) If the Material used is a parental material, AAFC holds no claim on the progeny.

Question 21: Please share any practical advice that you may have arising out of the drafting, negotiation and conclusion of the contract in question, in particular, any advice relating to the intellectual property aspects of the contract.

Response:
Benefit-Sharing: Germplasm is shared among breeding institutions and is often subject to ethical agreements, which are common amongst breeders and institutions.

http://wheat.pw.usda.gov/ggpages/oatnewsletter/SAQN/1998/Ethics%20Code.htm

http://www.ksu.edu/kscpt/nccec/ww-ethics.htm

Legal Advice: Yes

Model Contracts/Clauses: Modeled after the MTA used by the Consultative Group for International Agricultural Research (CGIAR) resulting from its 1994 agreement with FAO.

Question 22: Please share any "lessons learned" arising from your work in the field of contractual agreements for access to genetic resources and benefit-sharing.

Response:
A deviation away from Germplasm exchange, which was traditionally completed under the various ethical agreements, has met with some resistance to change. Implementing a Legal Agreement may be seen by some as an impediment to the Germplasm exchange process. AAFC's implementation of a Shrink Wrap MTA addresses some issues not adequately covered in the ethical agreements, but does so in a non cumbersome manner.