In the first case there is no contact with the right holder when accessing technologies. One might be worried whether the provider of the technology has the right to transfer it to you, but otherwise you are bound only by the laws of the country that you are in and not by the laws of the country where the material of technology came from. This means that when the patent on the technology is not valid in the country that you do research in, you are free to use it for research and to commercialise it. However, when a variety is commercialized in a developing country that exports the product (e.g. grain) to a country where the patent is valid, repercussions may result. This is the case in Roundup Ready soybeans in Argentina, where the technology is not patented, which is currently claimed by the patent holder in European countries, where the grain is imported for animal feed. The EU Commission supports the Argentine position, but the courts have to decide on this.

When the technology is protected by patent, the research institution may have different policies: either it applies the attitude of Mark Atere or the one of Fina T. Odinga in the animation. Mark’s commercial attitude is to do a risk assessment on the use of protected technologies: if the chance is minimal that the patent holder finds out; if the chance is small that the patent holder sues the institute when he finds out; and when the potential repercussions are manageable when the institute is taken to court - Mark Atere would advise the researcher to go ahead and use the technology.

A different approach is taken by Fina T. Odinga: her approach is a legal one – infringing the rights of others is always wrong, whatever the economic consequences. In addition, she points at the future working relation with the company that holds the patent, which may be challenged by the unauthorised use.

An institutional policy will have to choose between these attitudes. A commercial company may choose the economic approach – a public institution may have problems applying this approach (which puts them at a disadvantage to less scrupulous parties). However, there are examples where public institutions have been far too careful, i.e. that they have negotiated complex license agreements for technologies that were not protected in most of their continent and the chances of varieties being used in more developed countries would be dim slim.