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Patents on seeds Can patent pools provide a solution?

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

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Patents on seeds Can patent pools provide a solution?

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  1. Patents on seeds Can patent pools provide a solution?

  2. Content • Content: • Patents vs. plant breeders rights • What are native traits and varieties? • The industry • Patent pools

  3. 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.

  4. PBR vs. patents

  5. 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

  6. 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;

  7. 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 =

  8. 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…

  9. 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)

  10. 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

  11. PBR vs. patents

  12. The industry The major players in the vegetable breeding industry: Bejo Enza Zaden Monsanto Nunhems Rijk Zwaan Sakata Syngenta Takii Vilmorin Number of patent applications on native traits in Europe Turnover in 2009 in million €

  13. 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

  14. 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

  15. 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.).

  16. Patent pool • Essential patents • Also different demands in the market make it hard to define a worldwide standard.

  17. 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).

  18. 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.

  19. Acknowledgements • Students of the IPKM masters course 2009-2010 • Thorsten Dohmen • KrishnamaniJayaraman • Yifeng Jiang • Dan Mao • Angela van der Meer • BardhShrekli

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