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IPRs in Plant Breeding a live debate Niels Louwaars Director Plantum

IPRs in Plant Breeding a live debate Niels Louwaars Director Plantum. Field crops. Ornamentals. Vegetable seed. Young vegetable plants. Plantum. Plantum : 350 members Plant breeding/selection Production of seeds + other propagating materials Tissue culture

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IPRs in Plant Breeding a live debate Niels Louwaars Director Plantum

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  1. IPRs in Plant Breedinga live debate Niels Louwaars Director Plantum

  2. Field crops Ornamentals Vegetable seed Young vegetable plants • 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 The Netherlands No. 1 exporter in the world: especiallyhorticulture and seedpotato

  3. Intellectual Property • Plant breedinginvolves significant investments – by Dutch companies approx. 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. • Breeder’s rights • Trademarks • Trade secrets • Patents

  4. Intellectual property • IPRsprovideanexclusive right: the right toexcludeothersfromperformingcertain acts, such as commercial multiplication. • Plant Breeder’sRights, developed in the 1930s are a speciallydesignedprotection system for plant varieties • The UPOV Convention of 1961 harmonisednational systems; improvementswere made in 1978 and 1991

  5. Breeder’s Rights based on agri – “culture” • Special requirements (compared to patents): • Distinctness, uniformity, stability (instead of inventive step), novelty (different from novelty in patents) • Description based on biological nature (self/cross fertilisers) • Breeder’s exemption: all protected materials are free for further breeding • Farmers’ Privilege: for some crops own multilplication allowed. • Easy application (no lawyers needed)

  6. Patentsdesignedforindustrialinventions • Inventionsthat are new, involveaninventivestep and have an ‘industrialapplication’ • Internationally ‘harmonised’ since 1883 (WIPO) • Since 1980s (in USA) and 1998 (EU) alsoapplicabletobiotechnologicalinventions • Initially GMO technologies • In USA alsoforvarieties (not in EU) • In last decade alsoappliedtomoleculartechnologiesand‘native traits’

  7. 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 compared to the plant breeder.

  8. 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)

  9. Developments Legislator • EU: limitedbreeder’sexemption in new ‘unitary patent system’ • EU: report on the Biotechnology Directive dueearly 2014 Courts • European patent office: court cases about native traits (broccoli/tomato) • US/EU court cases tendto limit patent rights on human genes, on biotechinventions • EPO works on ‘raising the bar’ Industry • Vegetable breeders: work on an agreement to avoid ‘strategic patenting’ • ESA patent database

  10. Point of view is important to finding solutions to a problem!

  11. Intellectual property rights are essentialforsustainableinvestments in plant breeding IPRs have tobalance the interests of the holder of the rights and society Currently, the debate in EU concentrates on the relation patents/breeder’srights In LDCsalso on the relationbreeder’srights/farmers’ rights

  12. Courts • in the USA . . . . • 2005: re Fisher – utility problem in DNA sequence patents • 2009: re Kubin – lack of inventive step in gene coding for known protein • 2010/13: Ass. Molec.Pathologyvs USPTO: Myriad Breast Cancer gene: novelty. . • Strong reduction in patenting by universities • In Europe • 2010: Monsanto soybean case: patents not valid on soymeal • 2010: Enlarged Court of Appeal EPO: “Broccoli case” – breeding including some molecular component is essentially biological and cannot be patented • District court of The Hague: patent of a product of conventional breeding (purple radish)

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