Historically, academia has met the challenges of production agriculture through the utilization of federal and state monies to produce new varieties through classical breeding. Public sector varieties, which arose from these efforts, were moved easily to the commercial field, often with no practical need or thought for legal protection. With the advent of more sophisticated, more costly agricultural practices, including biotechnology, the paradigm is shifting. Although the potential pay-off for these technologies is substantial, up-front costs are high. In order for companies and organizations to recoup the high costs of development, intellectual property protection for key elements and technologies is sought well before products enter the field. Protecting innovations early in the "game" has led to situations where the requisite intellectual property rights needed to "practice an invention" are not available to those who developed the new product.

Protected technologies and germplasm are critical to capitalizing on biotechnological innovation. New strategies have evolved to address this situation, e.g. acquisitions and consolidations of companies in order to gain "freedom to operate" in practicing the new inventions. Certain of these acquisitions arose to provide access for the companies to key genes and value-added traits; other consolidations occurred to allow companies access to critical germplasm. These acquisitions and consolidations have practical implications for public sector efforts to improve germplasm. For example, what would happen if intellectual property and germplasm developed by the public sector were not protected? Companies that had the requisite freedom to operate in other areas could obtain germplasm developed in the public sector, make the appropriate licensing agreements with other large entities holding other pivotal "gamepieces", introduce the new value-added genes using proprietary or licensed elements and then market the improved germplasm back to original developers of the varieties at a premium. If, on the other hand, the germplasm were protected the scenario would likely be different. In this case the "outside" company would be obligated to "strike a deal" with the original developers of the germplasm if they wanted to introduce a new value-added trait to the variety. In this situation, the company wishing to modify the existing germplasm would likely work closely with those developing the germplasm. Concomitantly, the developers of the germplasm would have to be vigilant about protecting their varieties and growers would have to be encouraged to use protected rather than unprotected germplasm.

Without having legal control over key technologies, genes and/or germplasm that can be used as "bargaining chips" with the pivotal industrial players, the commercial sector will either not "play the game" with the germplasm developers or they will play the game with little input from the original germplasm developers. Public sector agriculturalists must take an active role in investing in the development of intellectual property and germplasm and they must be vigilant about its protection if they are to participate in future germplasm development using biotechnology.