Patents on seeds
Can patent pools provide a solution?
Content
Content:
 Patents vs. plant breeders rights
 What are native traits and varieties?
 The industry
 Patent pools
PBR vs. patents
Plant Breeders’ rights
Synonyms: Plant variety Rights, Plant Variety Protection
A right granted to the breeder of a new variety that provides
exclusive control over the propagating material and harvested
material of a new variety for a number of years.
Exemptions :
 Exemption for farm-saved seed. Farmers may store the production
for their own use as seed.
 Breeders' exemption, allows breeders to use protected varieties
as sources of variation to create new varieties.
PBR vs. patents
Applications on native traits per priority year
25
20
15
10
5
0
PBR vs. patents
Patent right
An exclusive right, which gives the inventor the right to exclude
others from practicing the invention in any way.
No selling, storing, importing, exporting, or manufacturing of the
protected product.
No exemptions
 No farmers' rights
 No breeders' exemption
What are traits and varieties?
Article 53(b) (EPC)
European patents shall not be granted in respect of:
plant or animal varieties or essentially biological
processes for the production of plants or animals; this
provision shall not apply to microbiological processes or
the products thereof;
What are traits and varieties?
What is a variety?
Both rule 26(4) EPC and article 5 of UPOV state that a
variety should be Distinct, Uniform and Stable.
i.e. a recognizable
and reproducible
end product
X
=
What are traits and varieties?
Tomato variety Mecano
 Round fruit
 Weight 110-120 g
 Strong against micro-cracking
 Grows well under different light conditions
 Resistances:
ToMV
Ff 1-5
Fol: 0,1
For
Va
etc, etc…
What are traits and varieties?
What is a trait?
 A trait is a single “building block” of a variety.
 A trait can be patented because it does not fall under
article 53(b) and rule 26(4) EPC.
Normal butterhead lettuce variety
patented multi-leaf trait(EP 09 42 643 B1)
What are traits and varieties?
Potential threats / benefits of patents on
native traits
No Breeders exemption means:
 Possible recovery of major technology investments
 Exclusive exploitation for 20 year
 No farmers’ privilege (USA)
 Protection of germplasm / market
 Uncertainty competitors
 Cross-licensing possibilities
PBR vs. patents
Applications on native traits per priority year
25
20
15
10
5
0
The industry
The major players in the vegetable breeding industry:
Bejo
Enza Zaden
Monsanto
Nunhems
Rijk Zwaan
Sakata
Syngenta
Takii
Vilmorin
0
200
400
600
Turnover in 2009 in million €
800 0
10
20
30
Number of patent applications on
native traits in Europe
40
Patent pool
Why a patent pool for trait related patents?
To ensure:
 Affordable cross licensing (= competition)
 Access to germplasm (= innovation)
 Access to market (= competition)
i.e. to ensure the
benefits of a breeders’
exemption
Patent pool
Elements of a successful patent pool
 Fair, reasonable, and non-discriminatory terms (FRAND)
 Presence of a good functioning standard
 Include only essential patents
 No competitive patents
Patent pool
Essential patents
 Trait patents are in general not connected to each other.
 Different climatological and biological demands make it
hard to define a worldwide or even regional standard
(e.g. different diseases, pests, drought tolerance, etc,
etc.).
Patent pool
Essential patents
 Also different demands in the market make it hard to
define a worldwide standard.
Patent pool
Competitive patents
 About 15% of the European applications on native
traits are competitive patents.
e.g. there are different cures (resistances) for the same
disease (e.g. Downey mildew in Lettuce).
Conclusions
Challenges to overcome for a patent pool on seeds
• Dominance of a few players with different company
cultures and strategies.
• No standardization possible due to the nature of the
patents and products.
• Substantial share of competitive patents.
• Very different demands for different markets and
regions.
Acknowledgements
Students of the IPKM masters course 2009-2010
• Thorsten Dohmen
• Krishnamani Jayaraman
• Yifeng Jiang
• Dan Mao
• Angela van der Meer
• Bardh Shrekli