IPRs in Plant Breeding
a live debate
Niels Louwaars
Director Plantum
Plantum
Plantum: 350 members
- Plant breeding/selection
- Production of seeds + other
propagating materials
- Tissue culture
- Trade in planting materials
- Turnover € 2.2 billion
- Export € 1.8 billion
Field crops
Ornamentals
Vegetable seed
Young vegetable
plants
The Netherlands
- No. 1 exporter in the world: especially
horticulture and seed potato
Intellectual Property
• Plant breeding involves significant investments
(in The Netherlands approax 300 m€ /year by
the public sector; approx 20 m€/year)
• The products of research (plant varieties) can in
most cases be easily reproduced
• Protection of intellectual property is thus
essential for the seed sector.
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Breeder’s rights
Trademarks
Trade secretrs
Patents
• IP is a right to explude others from
commercialising the protected subject matter
Patents
designed for industrial inventions
• Inventions that are new, involve an inventive
step (are ‘non-obvious’) and have an ‘industrial
application’
• Protection for 20 years
• Since 1980s (in USA) and 1998 (EU) also
applicable to biotechnological inventions
• Initially GMO technologies
• In USA also for varieties (not in EU)
• In last decade also applied to ‘native traits’
• Internationally ‘harmonised’ since 1883 (WIPO)
Breeder’s Rights
based on agri – “culture”
• Special system designed for protecting plant
varieties
• Special requirements (compared to patents):
o
Distinctness, uniformity, stability (instead of inventive
step), novelty (different from novelty in patents)
o
Description based on biological nature (self/cross
fertilisers)
• Breeder’s exemption
• Farmers’ Privilege
• Easy application (no lawyers needed)
• Internationally harmonised since 1961 (UPOV)
Breeder’s Rights and Patents
• Situation – a new variety with patented
traits/genes
• Breeder has the right on the variety but the
holder of the patent(s) can decide whether the
variety may be marketed – and may decide
royalty on the gene
• Other breeders cannot use the variety for
further breeding – and can use neither the gene
nor the genetic background for further
innovation
• Patent holder has a very strong position.
Opposition against patents
• Plantum (2009): patents are blocking innovation in
breeding. Need a full breeder’s exemption in patent
law (majority position)
• ESA (2011): no patents on native traits + limited
breeder’s exemption + inventing around procedure
• ESA (2013): patent database for transparency
• ISF: limited breeder’s exemption + extension of
patent duration (in some cases)
Developments
Legislator
• EU: limited breeder’s exemption in new ‘unitary
patent system’
• EU: report on the Biotechnology Directive due early
2014
Courts
• European patent office: court cases about native
traits (broccoli/tomato)
• US/EU court cases tend to limit patent rights on
human genes, on biotech inventions
• EPO works on ‘raising the bar’
• Industry
• Vegetable breeders: work on an agreement to
avoid ‘strategic patenting’
• ESA patent database
Intellectual property rights are
essential for sustainable investments
in plant breeding
IPRs have to balance the interests of
the holder of the rights and society
Currently, the debate in EU
concentrates on the relation
patents/breeder’s rights
In LDCs also on the relation breeder’s
rights/farmers’ rights