CIOPORA Chronicle 2015
2015 CIOPORA annual magazine on Intellectual Property protection for plant innovations. The edition issue was produced in cooperation with FloraCulture International. Read in the 2015 issue: - From the President: The world is changing - Should PBR influence the minimum distances between varieties? - U.S. plant patent protection & public use - Is border detention in the Netherlands an effective enforcement tool for breeders? - From Secretary General: Securing another piece of the puzzle - Gen Y consumers: flower purchasing behavior and social media - The superlative of miniature: a brand new small world and more...
2015 CIOPORA annual magazine on Intellectual Property protection for plant innovations. The edition issue was produced in cooperation with FloraCulture International.
Read in the 2015 issue:
- From the President: The world is changing
- Should PBR influence the minimum distances between varieties?
- U.S. plant patent protection & public use
- Is border detention in the Netherlands an effective enforcement tool for breeders?
- From Secretary General: Securing another piece of the puzzle
- Gen Y consumers: flower purchasing behavior and social media
- The superlative of miniature: a brand new small world
and more...
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The business magazine for horticultural plant breeding
JUNE 2015
WWW.CIOPORA.ORG
CIOPORA’S FUTURE
CHALLENGES
Securing another piece
of the puzzle
GENETIC RESOURCES
Are you being duly diligent?
Zooming in on IP
Law and practice
around the world
Table of Contents
07
From the President
The world is changing
10
IP Law: a balance
of powers
16
U.S. plant patent
protection and
public use
12
Should PBR
influence the
minimum distances
between varieties?
14
Who is ‘the breeder’?
18
Is border detention
in the Netherlands
an effective
enforcement tool for
breeders?
20
The easy way
to obtain PBR
in Turkey
21
From the
Secretary General
Securing
another piece
of the puzzle
22
Gen Y consumers:
flower purchasing
behavior and
social media
4 www.FloraCulture.eu | CIOPORA Chronicle June 2015
June 2015 CIOPORA Chronicle
24
The superlative of
miniature: a brand
new small world
26
New Code of
Conduct in Kenyan
flower industry
31
Recent changes
in the Turkish PBR
practice
32
Plant Variety
Protection in the
Russian Federation
28
Canada amends
its Plant Breeders´
Rights Act to
conform to UPOV’91
34
Ecuador: Latitude
and longitude,
altitude and attitude
36
Plant Variety
Protection System
in Mexico
38
Are you being
duly diligent??
43
Thoughts about
genetic resources
44
The promising
PVP system and PBR
law enforcement
in China
45
AGM: Defining and
refining the needs
of plant breeders
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 5
CIOPORA Members
®
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BallFloraPlant
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Become a member of CIOPORA
CIOPORA is an international, non-governmental organisation
representing the interests of breeders of asexually reproduced
ornamental and fruit varieties worldwide. CIOPORA has currently
102 members including individual breeders, breeding companies, IP
lawyers and royalty administration services. Top priority of CIOPORA
is the constant development and enhancement of systems of Intellectual
Property Protection for plant innovation, which include Plant Breeders´
Rights, Patents, Plant Patents and Trademarks. CIOPORA acts as a
strong voice of the industry in regard of IP protection. The association
enjoys the observer status at the Community Plant Variety Office
(CPVO) and the International Union for the Protection of New
Varieties of Plants (UPOV).
The Board invites you to join CIOPORA’s global member community.
The persons eligible for membership are defined in the CIOPORA’s
bylaws. Each member candidacy is subject to approval by the
CIOPORA Board.
More information about membership: www.ciopora.org.
Contact us: info@ciopora.org
Tel: +49 (0)40-555-63-702 or Fax: +49 (0)40-555-63-703
6 www.FloraCulture.eu | CIOPORA Chronicle June 2015
From the President
The world is changing
Andrea Mansuino.
I
believe that, quite possibly, the world has never changed as quickly and intensely as it has in the
last twenty years.
Of course I am not underestimating the importance of many historical events which have
determined fundamental evolutions, such as the rise and fall of the Roman Empire, the discovery of
the Americas, the American and French Revolutions, the industrial revolution and the World Wars, to
name a few.
But, in my humble opinion, the big difference between those historical events and the changes that
have occurred in the last two decades is that the recent revolution involves, all together and at the same
time, all humanity and all generations, without limitations.
The digital revolution is probably the most-democratic, overwhelming, radical change the global
society has ever seen. Computers, tablets and especially smart phones, all connected to the Web, make
communication and access to instantaneous information easy, fast, cheap and borderless. The first
internet page went live in 1991 – the year internet connections worldwide reached one million, and
also the year the last Act of the UPOV Convention was signed. There are now billions of Web pages,
much more than 3 billion internet users worldwide (with this number increasing every second), while
plant breeders still deal with the same UPOV Convention.
Communication and fast, ready-to-use information have now taken the lead in shaping human
destinies. Economy and business are deeply influenced by such changes, as is politics, international
relations (including war and peace dynamics), science and society as a whole.
What I find very interesting, and maybe less obvious, is that in this scenario the ‘software’ has evolved
more and faster than the ‘hardware’. In other words, flexibility, infrastructure and dynamism prevail
over steadiness, structure and tradition.
The growth and profits of flexible and dynamic digital companies have taken over the previously
dominating power of heavy industry giants; and within the first group, those companies who excel
in software and digital solutions grow more and make more profits than the traditional hardware
specialists.
Innovation and flexibility are now the keys to success; knowledge and adaptation to change often
make the difference between being successful or disappearing, while heavily-structured businesses
suffer because of their slow reaction to new opportunities and their often unbearable overheads.
In our industry, we see a similar situation. The business for breeders is inevitably global, and companies
have a hard time being cost effective.
In my opinion, Intellectual Property is the answer to these issues, for everyone. Our industry definitely
needs a robust and fair Intellectual Property system in order to protect and stimulate innovation and to
allow cost-effective licensing management through the product chain or in the vertical integration.
In fact, breeders need still a “sui generis and effective protection system” (quote from TRIPS
agreement), which in simple terms means a juridical IP tool that is specifically conceived for plants and
that must be (easily) enforceable.
CIOPORA is highly-commited to breaking the stalemate. Addressing the need for an effective
IP system for plants has been the mission of CIOPORA for more than 50 years and is still the main
concern of the organization today.
The recent Broccoli/Tomato sentence by the Enlarged Board of Appeal of the European Patent Office,
which confirms the positive trend for the patentability of products obtained also through essentially
biological processes in the European Union (consistent with a global trend which sees many countriesfor
example the United States, Australia and Japan- already offering this possibility to plant breeders),
shows that important changes also happen in our industry and that the UPOV system may be obsolete,
after about 25 years from its last Convention, and not adequate enough to protect the interests of
breeders.
CIOPORA observes, with attention, these changes and actively debates about the positive or negative
consequences of such changes for our industry. New CIOPORA positions have recently been approved
by its breeders on various fundamental topics in plant protection. Positions on very difficult matters
>>>
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 7
From the President
such as the ‘breeders´ exemption’ or the ‘minimum distances for distinction between protectable
varieties’ have been unanimously approved by the CIOPORA membership, which includes most
prominent flower and fruit breeders from Holland, Germany, France, USA, New Zealand, Australia
and South Africa, just to mention a few countries.
And on another note, to avoid doubts and react to some unsubstantiated rumors, let me confirm that
these positions state that CIOPORA is strongly in favor of the breeders´ exemption, a fundamental
UPOV principle that allows genetic improvement in the plant world, and is strongly in favor of robust
IP protection for new and clearly distinguishable plant varieties.
In the last Annual General Meeting (AGM) in Hamburg, in April 2015, CIOPORA members once
again approved a complex position paper on various General Matters of Plants Breeders´ Rights,
including the concept of Novelty, different formal issues and enforcement, amongst others. Intense
discussions are also taking place on two very hot topics - the Essentially Derived Varieties and the
use of Patents in the plant world - and members wish further debates based on substantial knowledge
before accepting any position.
Also at AGM 2015, we discussed the future or our organization and how to better meet the needs
of our members. CIOPORA has decided to question itself and to try to find an answer to the
fundamental question: “Where do we want to be in five years?”.
Based on a SWOT analysis conducted by an external auditor and on a Members’ Web Survey,
CIOPORA has decided to increase its commitment in areas where its knowledge can be of great
support for the breeders in addition to its fundamental mission of networking among breeders and
supporting breeders' rights, worldwide.
More communication and education on IP in plants directed to members and to the whole industry,
more political involvement in Patents and Biodiversity discussions and their implications for the
breeders, and an active assistance in the enforcement activities of its members are the new priorities of
CIOPORA for the coming years.
I am very proud of this process, which is very democratic and challenging especially for the CIOPORA
leadership. As President of this organization, I am very confident that all the above will bring fruitful
results for the breeders´ community. Our Board, our Secretary General and the entire CIOPORA
office are deeply committed to making the association better every day, understanding the needs of the
members, and anticipating changes in the industry and society.
In the pages of this magazine you will read very high-level articles written by some of the top experts in
our industry. I am sure that you will find them informative, educational and intellectually enriching.
CIOPORA is proud to offer them to you.
I wish you a good reading.
Sincerely,
Andrea Mansuino
President of CIOPORA
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 9
Zooming in on IP
When we think
of the normal life
cycle of a company
– taking a new idea
from start-up phase
through absolute
growth, to maturity
and, finally, downfall
– we think of the
modern, industrial
company. Today,
more often than
not, this cycle
also applies to
businesses in the
agriculture industry.
by Jaap N. Kras
IP Law: A balance
of powers
A
century ago, farms
were mostly quaint and
picturesque. The period of
the farmer families - taking care
of a few cows, horses and chickens
running behind the farmhouse,
the wife milking goats daily and
the happy farmer smoking a pipe,
whistling and eavesdropping for
an echo under the golden sun
of the Alps – is history. Today,
agriculture is less quaint. It is big
business governed by big laws.
Large farms versus
monopolies
To regulate economical behaviour
by law or treaty is a matter of rope
dancing, if not impossible. On
the one hand, certain economical
behaviour has to be stimulated,
for instance through Intellectual
Property laws; on the other hand,
economic power is sometimes
abused.
Often, only big and strong
companies can control the market
by using their dominant position.
Because of this, agriculture companies
must industrialize through
horizontal and vertical integration.
However, we see problems
arising when originally small
companies expand into companies
with dominant positions in
the market.
Let us not forget that there are
laws in place to protect agricultural
companies from falling prey to
monopolies. According to Article
42 of the European Union Treaty,
an exemption for agriculture
companies exists in relation to
the cartel regulations in Article
102, which is aimed at preventing
abuse by large companies. On
the other hand we see undertakings
with a dominant position in
the market abusing their power.
Perhaps we need rules to prevent
misuse of this dominancy.
Intellectual
Property Rights
The growing number of applications
for patents and breeders´
rights proves the importance of
these rights. Also the growing number
of trade marks shows that farmers
are serious about the importance
of distinguishing themselves.
There are many uncertainties in the
relationship between patent and
breeders´ rights. The most-recent
demonstration of this is the broccoli
case, which says all inventions
in the plant world can be patented,
leading to even more questions in
the breeders´ world. Will this lead
to the end of the breeders´ right if
all inventions in the plant world
can be brought under patents to
dominate agricultural trade and
undermine the position of the
breeder?
Shortage of legal
knowledge
Part of the weak position of breeders´
rights today is our own fault
and our own shortage of legal
knowledge. Many prominent
agriculture leaders have dominated
breeders´ rights discussions for years
without understanding the legal
character and implications of the
rights. These legally inexperienced
individuals are the same people
holding positions in governmental
bodies that grant and control breeders´
rights. This unfortunate truth
has resulted in weak breeders´ rights
and poor jurisprudence despite the
International Union for the Protection
of New Varieties of Plants
(UPOV) being in existence for more
than 50 years.
For years, we lawyers have left
the discussion to engineers who
study agriculture but not law.
They are people with a different
education from other disciplines,
with limited understanding of the
juridical systems. And we’ve seen
the problem again in the recent
broccoli decision. The reaction was
that inventors can patent existing
characteristics in plants. Quod non
of course.
Important responsibility
A patent is like a breeders´ right
and all other Intellectual Property
rights - an absolute right on a
product of the mind. An abstract
product. In my opinion (to say it
loud and clear): to have a patent or
breeders´ right on a chromosome
or a gene is impossible. I think
UPOV and the Community Plant
Variety Office (CPVO) as important
breeders´ right organizations
not only have a political task but
also an important responsibility
to strengthen the legal knowledge
of breeders´ rights. If the content
is not clear, how can you do your
tasks well?
Plant Breeders´ Rights
UPOV was founded on December
2, 1961. In that year, the most
important discussion in the organization
was the minimum distance
between varieties. More than 53
years later, the most important
discussion is still the minimum
distance between varieties. Instead
of providing solutions to these
discussions, the UPOV doubled the
controversy with the introduction
of Article 14(5) in the 1991 Act,
which established that the scope
of protection of a plant variety also
extends to varieties which are essentially
derived from the protected
variety, where the protected variety
is not itself an essentially derived
variety.
While the question until 1991
was: “Does this variety differ from
all other varieties (new and DUS)
and thus can be granted a new
breeders´ right?”, now the system
10 www.FloraCulture.eu | CIOPORA Chronicle June 2015
is indeed that you have a new
variety and a new breeders´ right
but still need the permission of
the holder of an existing breeders´
right because it looks like one of
the protected parents. Yes, it is new
to be granted a breeders´ right, but
not new enough that you still need
permission from another (the story
of half pregnancy).
An apple is not
a gerbera
Why do we need breeders´ rights?
In the plant world we deal with
living material. Every plant has
parents. Industrial inventions can
be reproduced the same one patent
fits all. The justification to have
breeders´ rights for plants is that
not one single plant is exactly like
other plants. No child is totally the
same as his parents, as the one-egg
twin researchers have proven.
That difference with industrial
products is the real value of breeders´
right. Where patent law can
be made for all inventions in the
biological world, we have to live
with the realities of differences.
An apple is not a gerbera. For a
carrot, the colour of the root might
be important; for a begonia,
not at all. We should have taken
responsibility within the last 50
years to differ breeders´ rights
according to the needs of different
crops and their main characteristics.
The goal of breeders´ rights is
to stimulate breeding. Therefore,
fruit breeders might need wide
minimum distances and vegetable
breeders´ small minimum distances
in granting a breeders´ right.
The criteria must be based on how
to best stimulate breeding.
More important rope
dances to come
And it gets worse. In the
Netherlands, a country influential
in UPOV and the EU breeders´
rights, we still have foremen who
do not know what a breeder is,
when a breeders´ right is founded
or when the absolute rights on a
new variety begin. We still have
those startling confusing law
texts in our breeders´ rights law
book (see ZPW Article 1 (j) and
ZPW Article 50 (1) “What is a
breeder?”).
Recently I have heard of discussions
of excluding the breeders
and research exemption by way of
contracts. Perhaps in the future
it will be followed by contracts
where the trader extends the time
of protection. That certain parts
of the breeders´ right law are
integrated parts of the rights itself
(constitutive demands), which
cannot be exempted or conditioned
by contracts, should be the discussion
here. And, there are more
important rope dances to come, in
my opinion.
When is a breeders´ right exhausted
(Article 16 of the UPOV 1991 Act)?
And what are the public interest
criteria to restrict the free exercise
of breeders´ right (Article 17)?
Yes, it is important to expand the
UPOV with new members! But
more important is to have clear,
transparent, uniform, homogeneous
and stable rules. So let us start
to make DUS breeders´ right rules,
after 50 years, a requirement and
not a luxury. |||
About
the author
Jaap Kras is an
industry veteran and
the owner and publisher of
FloraCulture International.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 11
Minimum Distance
The breeders
of vegetatively
reproduced
ornamentals and
fruit varieties,
represented by
CIOPORA, are deeply
concerned about the
distances between
plant varieties, as in
trade some varieties
no longer can be
distinguished from
each other. w
Should Plant Breeders´
Rights influence the
minimum distances
between varieties?
by Kees van Ettekoven
For some time, CIOPORA has
claimed that in the decision
on distinctness not all
characteristics from the guidelines
and protocols should be used, but
rather a specific set of characteristics
that represent a certain value for the
crop concerned.
Some thoughts on
the subject
In ornamentals and fruit species,
especially, there usually is a strong
link between the description of a
variety as it is made as a result of
the DUS test in the framework
of Plant Breeders´ Rights and the
features of the variety that are
important to market the variety.
Examples are flower colour, fruit
shape, stem length, et cetera.
This is a consequence of the testing
method; usually the characteristics
are visually observed and so far not
many other characteristics play a role.
Further more, there is a comparable
importance of variety characteristics
for grower and consumer.
In other sectors this is not, or is far
less often, the case. Many vegetable
varieties cannot be distinguished
visually, but differ in e.g. earliness
or disease resistance. For growers,
these differences are very important,
where at the same time the average
consumer can barely distinguish
Butterhead lettuce from Iceberg
types. The information of the
features of the varieties is communicated
by the breeders to the growers.
In agricultural species, the situation
is even far more complex; in wheat
and grasses only by measuring and
the application of statistics varieties
The breeders of vegetatively reproduced ornamentals and fruit varieties, represented
by CIOPORA, are deeply concerned about the distances between plant varieties.
can be distinguished. Also here
farmers are very keen to choose
those varieties that suit their needs
best. To make this choice they do
not refer to the descriptions made
for Plant Breeders´ Rights, but
separate VCU (Value for Culture
and Use) trials are being organised.
Consumers usually have no notion
at all from which variety their bread
is baked.
UPOV principle
The UPOV ’91 convention states in
Article 7: Distinctness: “The variety
shall be deemed to be distinct if it
is clearly distinguishable from any
other variety whose existence is a
matter of common knowledge, et
cetera.”
In the practice of the test to establish
distinction, there is a tendency
to consider also small differences as
sufficient. Especially in ornamentals,
where the test is often carried
out with the candidate and the closest
comparing variety side-by-side
in the trial. It cannot be excluded
that the availability of the EDV concept,
that gives the Right Holder at
least the possibility to act if new varieties
are too close to his protected
one, lessened the pressure to ensure
larger differences between varieties.
At the same time, many applicants
make a very convincing case when
the DUS tester is in doubt to show
that the varieties are different and
thus it is clear that Plant Breeders´
Rights should be granted.
12 www.FloraCulture.eu | CIOPORA Chronicle June 2015
CIOPORA position
The CIOPORA position paper on
Minimum Distance announces
the wish to introduce the change
from the present botanical driven
definition of the requirement of
a variety. The wish is to be clearly
distinguishable into a system that
takes into account only those
characteristics that represent a
certain agreed value for the species
concerned.
Case study
A project has been defined to test if
it is feasible to apply this approach
and identify possible problems
in doing so. This project will be
submitted for financing to CPVO
as R&D project.
In the project, three different
species will be studied: apple, rose
and pelargonium. The present
CPVO guideline will be used as
basis. CIOPORA will propose a
reduction of the characteristics
that may be used to study
Distinctness. This will be done
by deleting certain characteristics
or states of expression within the
characteristics.
Using the amended reduced guidelines,
the CPVO entrusted examination
offices will re-examine 50
recently protected varieties of rose,
apple and pelargonium on paper to
see the possible effect of the defined
modified protocol.
The report on the conclusions of
this case study can be used in further
discussions on the subject.
For apple the entrusted offices
are: BSA (DE), COBORU (PL),
GEVES (FR), NEHIB (HU) and
UKZUZ (CZ).
For rose: Naktuinbouw (NL), BSA
(DE) and NIAB (VK).
For Pelargonium: BSA (DE).
Before the results are available, it is
always dangerous to prelude on the
outcome of a project. However a
In ornamentals,
the test is often
carried out with
the candidate and
closest comparing
variety sideby-side
in the trial
(Photo European
Pack Trials at
Hem Genetics).
few predictions can safely be made:
• If results of the Distinctness analysis
will be considerably different
from the original one, discussion
will take place among the applicants
where some will see their
variety as no longer distinct.
• If as a result a movement will be
launched to amend the present
DUS test two important UPOV
hurdles have to be taken. The
principle that all applications are
subject to the same DUS treatment
regardless the species or sector and
the principle that the UPOV guidelines
are really guidelines. And
even if an application is clearly distinct
on a characteristic that is not
included in a guideline but fulfils
the UPOV criteria for a characteristic
it can be granted rights.
Closing remarks
The results of the case study will
have no effect on the rights granted.
The definitions used for this case
study will only be developed for
this case study. This study does
not mean a priori that the present
system of testing applications will be
changed. The results of the project
will be presented and discussed with
representatives of the ornamental
and fruit breeders. |||
About the author
Kees van Ettekoven heads the Dutch Plant Breeders' Rights and Variety
Testing system in the Netherlands that is established in Naktuinbouw, the
official Inspection Service for Horticulture in the Netherlands. Under his
responsibility a team of 65 staff members annually tests 3,000 new varieties
on Distinctness Uniformity and Stability according to the UPOV principles.
In ornamentals and fruit species,
especially, there usually is a strong link
between the description of a variety.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 13
Zooming in on IP
This contribution is
not a horticultural
“whodunit”, but
an attempt to
clarify the concept
which might be
considered as quite
straightforward
by the majority of
readers.
Who is ‘the breeder’?
by Bart Kiewiet
and Tjeerd Overdijk
A
Plant Variety Right (PVR)
cannot exist without an
owner, usually the breeder.
The Council Regulation (EC) No
2100/94 on Community plant
variety rights (“Basic Regulation” or
“BR”) sets forth that ‘the breeder’
shall be entitled to the Community
PVR.
This rule seems logical and clear,
but its implementation and interpretation
do not always appear
to be that simple.
Definition
The 1991 Act of UPOV (‘the Convention’)
gives a threefold definition
of ‘the breeder’.
According to Article 1 (iv) of the
Convention ‘breeder’ means:
• the person who bred, or discovered
and developed, a variety,
• the person who is the employer
of the aforementioned person
or who has commissioned the
latter’s work, where the laws of
the relevant Contracting Party so
provide, or
• the successor in title of the first or
second aforementioned person, as
the case may be;
Case law on “breeder”
For the purpose of this contribution
we will focus on the first indent of
the definition in Article 1 (iv) of
the Convention. This part consists
of two main elements: (1) “the person
who bred (…) a variety” and
(2) “the person who (…) discovered
and developed, a variety”. The
first element of that description
- “the person who bred the variety”
- is not very helpful, because the
Convention lacks a definition of
‘breeding’. The interpretation of
this term is left to the authorities
implementing the Convention.
In this article we have a closer look
at how the Community Plant Variety
Office (CPVO) interprets the
notions of breeder and breeding
when examining the entitlement to
a Community Plant Variety Right.
In the Basic Regulation the EU
adopted the same definition of
‘the breeder’ as the Convention (at
least the first element). Like the
Convention, the Basic Regulation
does not provide any definition of
‘breeding’.
Article 54(2) of the Basic
Regulation states that the first
applicant shall be deemed
entitled to the Community PVR,
unless the CPVO is aware that
entitlement is not or is not solely
vested in the first applicant. In
other words, the main principle is
that the first applicant is deemed
to be the breeder. In most cases
it is not necessary for CPVO to
make a profound assessment of the
breeding process of a variety, which
is the object of an application
for protection. However, in the
event that a person other than the
applicant claims to be the breeder
of the variety, the CPVO will have
to investigate its breeding history.
As follows from case law of the
Board of Appeal of the CPVO (see,
for instance, case A 017/2002) the
burden of proof in such a case is
put on shoulders of the third party
that claims entitlement to the
PVR under the application. That
party has to produce convincing
evidence that he or she, and not
the applicant, has bred the variety
in question.
Another interesting issue is how
the Office should deal with a
situation where a third party
contests that the applicant is
the breeder, but leaves open the
question about who the real
breeder is. This situation is not
foreseen in the BR. It seems in
line with the legal assumption in
Article 54(2) BR (i.e. as a rule the
first applicant is the breeder) that
also in such situation the burden of
proof that the applicant is not the
breeder rests with the third party.
14 www.FloraCulture.eu | CIOPORA Chronicle June 2015
Not a mere discovery
In trying to decide on the identity
of the breeder, it will be necessary
to answer the question, what has
to be understood under ‘breeding’.
The CPVO practice shows that in
its opinion ‘breeding’ encompasses
all techniques aimed at creation
of a new variety, not only classic
crossing and back-crossing, but also
acts of genetic engineering resulting
in the modification of part of the
genome of existing varieties. To put
it in words of the CPVO Board of
Appeal 1 ‘breeding’ does not necessarily
imply inventing something
totally new, but “includes the
planting, selection and growing of
pre-existing material and its development
into a finished variety.”
The second element of the definition
of ‘breeder’, “[the person] who
discovered and developed a variety”,
did not enter the Convention
without a fundamental discussion
on its bearing. The proposal for a
new act (version) of the Convention,
as discussed in the Diplomatic
Conference in 1991, contained the
following definition of ‘breeder’:
“the person who bred or discovered
a variety”. There was no mention
of ‘developing’. It was emphasized
that the notion ‘discovery’ was not
only related to varieties as they occur
in the wild, but also, and perhaps
foremost, to mutations of plants
growing in cultivation conditions.
Nevertheless, there was a common
understanding that the mere act of
discovery should not qualify the
person concerned as the breeder of
the variety in question. A proposal to
add ‘and developed’ after ‘discovered’
was finally carried by a large majority.
Article 1(iv) was consequently
adopted in its present form.
The history of the second part of
the definition of ‘breeder’, as summarized
above, shows clearly that
only the person who performs the
acts of discovery and development,
in combination, is ‘the breeder’ of
the variety in question. But what do
these two acts imply exactly? Also at
this point it was for the case law to
give more clarity.
Clarification of
“discovery”
In a landmark decision 2 the CPVO
Board of Appeal has given its
opinion with regard to the meaning
of the term ‘discovered’. In the
opinion of the Board of Appeal ‘discover’
means that somebody comes
across a variety either by search or
by chance, being conscious of the
fact that it is a new variety, which
was unknown to him before and
which, in his opinion, is unknown
to others. It is possible therefore,
that one and the same variety is
discovered by two or more persons
independently, at different points
of time in the same location or in
different locations.
Many license contracts in respect
of the reproduction of ornamental
varieties hold a clause concerning
the exploitation of mutations of the
variety concerned that will be ‘discovered’
by the licensee. Whatever
its contents, such a clause cannot
have as a legal consequence that the
licensee fails to qualify as breeder in
the sense of the Convention in case
he develops that mutation into a variety
eligible for protection. Therefore,
when entering into or advising
on license agreements, it is advisable
to work with the available definitions
and interpretations thereof we
can find in the case law. |||
1 CPVO Board of
Appeal, case
A17/2002 (BR9)
of 3 April 2003
2 CPVO Board of
Appeal, case A
001/2004 of 16
December 2004
About the authors
Tjeerd Overdijk is a lawyer and co-owner of Vondst Advocaten. Former
CPVO President Bart Kiewiet is a leading specialist in plant variety rights,
and also an expert in the fields of Dutch and European administrative
law. He is co-author of a standard work of reference on community plant
variety rights and regularly speaks at seminars and as visiting lecturer at
the universities of Wageningen and Strasbourg.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 15
IP in the World
The United
States offers
patent protection
for asexually
reproduced plants
with plant patents.
The requirements
for obtaining a U.S.
plant patent include
novelty, utility and
non-obviousness.
by Robert Jondle, Ph.D., Esq.
and Krista Hill, Ph.D.
U.S. plant patent
protection and public use
To be novel, the invention
must NOT have been
patented, described in a
printed publication, or in public
use, on sale, or otherwise available
to the public before the effective
filing date of the claimed invention,
with the exception of a one
year grace period for the inventors’
own disclosures. A recent U.S.
court appeal decision in Delano
Farms v. California Table Grape
Commission sheds new light on
the concept of “public use”.
Background
The California Table Grape
Commission, an agency of the
state of California, has an exclusive
license from the U.S. Department
of Agriculture (USDA) for the
patented table grape varieties
‘Scarlet Royal’ (U.S. Patent No.
PP16,229) and ‘Autumn King’
(U.S. Patent No. PP16,284).
The Commission sublicenses
the patents to grape growers in
California and collects royalties
on the grapes produced that are
shared by the Commission and the
USDA.
In Delano Farms v. California
Table Grape Commission (No.
2014-1030, Fed. Cir. Jan. 9, 2015)
the U.S. Federal Circuit Court of
Appeals upheld a California court
decision challenging the validity of
the plant patents for ‘Scarlet Royal’
and ‘Autumn King’. The plaintiffs,
Delano Farms Company, Four
Star Fruit, Inc. and Gerawan
Farming, Inc., are California
grape growers who purchased
the grapevines, signed license
agreements with the Commission
and paid the licensing fee. The
plaintiffs sought to invalidate the
plant patents under the public use
bar on the ground that the two
grape varieties were available to the
public more than one year prior to
the filing date of the applications,
also known as the “critical date”.
The U.S. plant patent applications
for ‘Scarlet Royal’ and ‘Autumn
King’ were filed on September 28,
2004, making their “critical date”
for public use bar September 28,
2003.
The story behind
the lawsuit
The story begins on August 22,
2001, when the USDA held an
experimental variety open house
at California State University in
Fresno where USDA representatives
displayed unreleased table grape
varieties, including ‘Scarlet Royal’
and ‘Autumn King’. In attendance
at the open house was California
grape grower Jim Ludy, who asked
USDA employee Rodney Klassen
if he could give him some of the
plant material of ‘Scarlet Royal’
and ‘Autumn King’. Apparently,
Mr. Klassen had given Jim Ludy
unreleased plant material in the
past. Despite the fact that he was
not authorized, in early 2002 Mr.
Klassen gave Jim Ludy plant material
for ‘Scarlet Royal’ and ‘Autumn
King’. Mr. Klassen instructed Jim
Ludy not to let the material “get
away from [him]” and not to “put
them in a box,” which was understood
to mean that he was to keep it
secret and not sell any grapes until
the varieties were commercially
released.
At that time, Jim Ludy knew that
neither variety had been released by
the USDA and that he was not authorized
to have the plant material.
Nonetheless, Jim Ludy subsequently
grafted numerous vines of
‘Scarlet Royal’ and ‘Autumn King’
and also gave “a few buds” to his
16 www.FloraCulture.eu | CIOPORA Chronicle June 2015
cousin, Larry. Larry Ludy also
knew that the material had come
from the USDA and that it had
not yet been released, and he knew
that the Ludys’ possession “was
supposed to be a secret”. By 2003,
Larry Ludy had produced hundreds
of vines of ‘Scarlet Royal’ and ‘Autumn
King’. Additionally, Richard
Sandrini, who served as table grape
marketer for Jim and Larry Ludy,
was also informed of the Ludys’
unauthorized possession. After
the critical date, Mr. Sandrini sold
Larry Ludy’s 2004 harvest of ‘Autumn
King’, but to avoid detection
he labeled the grapes as “Thompson
Seedless”.
Appeal ruling
In the U.S., use by a third party
who did not obtain the invention
from the inventor named
in the application or patent is an
invalidating use only if the use was
accessible to the public. An inventor
creates a public use bar when
the inventor shows the invention to,
or allows it to be used by, another
person who is “under no limitation,
restriction, or obligation of confidentiality”
to the inventor.
Therefore, the U.S. appeals court
agreed with the earlier California
court ruling that the Ludys’ use
of the two grape varieties was not
public. The evidence supported that
the majority of the Ludys’ plantings
prior to the patents’ critical date
bore no usable fruit and that they
did not sell any grapes from those
plantings prior to the critical date.
None of the Ludys had disclosed
their possession of the unreleased
varieties to anyone aside from Mr.
Sandrini nor did they provide plant
material to anyone else until after
the critical date. Although the
Ludys’ ‘Scarlet Royal’ and ‘Autumn
King’ vines were not fenced and
were growing next to publicly
accessible roads, none of the vines
were marked or labeled in any way,
making them virtually unidentifiable.
AIA and “public use”
The America Invents Act (AIA)
introduced changes to the U.S. patent
system on September 16, 2011.
Under the AIA, the public use
provisions described above remain
mostly the same with respect to
uses by either the inventor or a third
party. Notable changes under the
AIA include that a prior public use
does not need to be in the U.S. to
qualify as prior art, and that the
one year grace period for public
use is measured from the effective
filing date of the application (i.e.,
from any earlier filed applications).
In considering the present situation,
it seems unlikely that the AIA
would have changed the outcome
of this case regarding “public use”.
The decision in this case emphasizes
the importance for owners of
plant varieties to, prior to filing for
a U.S. plant patent, have signed
agreements with all parties having
access to experimental plant material
to avoid any disclosure which
could result in unauthorized “public
use”. Well-written agreements,
such as confidentiality, material
transfer, experimental testing,
production and commercialization
agreements, are important
in maintaining proper control of
proprietary material. |||
About the author
Both Robert Jondle, Ph.D., and Krista Hill, Ph.D., hail
from Jondle Plant Sciences, Jondle & Associates,
P.C. Krista is a patent agent, while Robert
is a patent attorney.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 17
IPR Enforcement
In 2013, the EU
customs authorities
detained almost
36 million items
suspected
of infringing
Intellectual Property
Rights (“IPR”) 1 .
Border detention
measures can
be an effective
enforcement tool for
breeders to enforce
their PVR in the
Netherlands.
by Fleur
Tuinzing-Westerhuis
Is border detention in the
Netherlands an effective
enforcement tool for breeders?
Even though the percentage
of detentions on the basis of
suspected infringements of
Plant Variety Rights (“PVR”) is
still relatively low in comparison to
other IPR (0.40 % of the articles
detained by customs authorities)
border detention measures can be
an effective tool for breeders to enforce
their PVR in the Netherlands.
Over the past years, Dutch customs
authorities have detained various
shipments of ornamentals (roses
and gerbera) and fruits such as table
grapes, strawberries and citrus fruit.
The majority of these detentions
have been settled out of court.
The EU Anti-Piracy
Regulation
According to the EU Anti-Piracy
Regulation 2013 (“APR”) 2 , the IPR
holder can request the customs
authorities to suspend the release of
the goods or detain goods (hereafter:
“detain”) that are suspected of
infringing IPR. The APR applies
to goods that are imported into
or exported from the EU and to
goods in transit, provided that there
is an indication that the latter are
intended for the EU market 3 . The
APR does not apply to genuine
goods that are imported without
consent of the IPR holder, such as
illegal parallel trade and overruns.
How does it work?
Border detention measures can
be applied for in The Netherlands
by filing an application form at
the IPR Team of the customs authorities
in Groningen, The Netherlands.
The customs authorities
are entitled to act ex officio, but in
practice they rarely act without an
application in place. The IPR holder
can choose between a national
application and, for Community
IPR, a EU application. In addition
to enforcing PVR, breeders can also
base their request for action by customs
on other IPR, such as patents
and trademarks.
When the customs authorities
identify a suspected infringing shipment,
the procedure is as follows:
1. Customs authorities simultaneously
notify both the IPR holder
and the declarant or holder of
the goods (jointly: “holder of the
goods”) of the detention, and
provide information about the
quantity and the nature of the
goods;
2. Upon request of the IPR holder,
customs can provide additional
information, such as the names
and addresses of consignee,
consignor, declarant or holder
of the goods or the origin and
destination of the goods;
3. The IPR holder will have the
opportunity to inspect the goods.
Only in respect of counterfeit or
pirated goods 4 samples can be
provided to the IPR holder for
further analysis;
4. The IPR holder has to inform
the customs authorities within
ten working days (in the event
of perishable goods within three
working days) of notification if
the goods are infringing and if
he agrees with destruction of the
goods;
5. The holder of the goods can
object to destruction of the goods
within ten (or in the event of
perishable goods - three) working
days from notification.
Scenario A –
simplified proceedings
If the IPR holder confirms that his
IPR are infringed and agrees to
destruction, and the holder of the
goods agrees to (or does not object
timely) to such destruction, the
customs authorities will proceed
with destruction of the goods,
without necessity of legal proceedings
in which it can be determined
if the goods are actually infringing
the IPR.
Scenario B –
legal proceedings
If the holder of the goods objects to
destruction, the IPR holder will have
to initiate legal proceedings in which
it can be determined if the goods are
indeed infringing his IPR within ten
days from the detention notification.
In case with non-perishable goods,
this term can be extended once for
10 working days. If the legal proceedings
are not initiated timely by
the IPR holder, customs authorities
will release the goods. At this stage,
it will be sufficient to request a civil
court to grant leave for pre-judgement
seizure, as this will have to be
followed up by the proceedings on
merits in which it will be determined
if the goods are in fact illegal. While
the legal proceedings are pending,
the customs authorities will detain
the goods.
Scenario C –
illegal parallel import
or overruns
If it appears that the goods are illegal
parallel trade or overruns, the
customs authorities will release the
goods. However, in Dutch case law,
it has been held that the information
obtained from the customs
authorities relating to suspected
infringing goods can be used by
the IPR holder to take civil action
in the event the goods appear to be
illegal parallel trade 5 . If the goods
are seized pursuant to a leave for
pre-judgement seizure granted by
the court, the customs authorities
will not release the goods.
Accurate information
The success of border detention
measures strongly depends on
18 www.FloraCulture.eu | CIOPORA Chronicle June 2015
information provided to customs
authorities in the application form.
As most breeders have a licensing
network of propagators, growers
and traders, and as the parties
in this network closely monitor
infringing activities, breeders are
generally able to provide customs
authorities with detailed and
accurate information about both
authorized and infringing products
(in some cases even the name of a
vessel or arrival time of a shipment).
The more accurate the provided
information is, the higher the
chance of the detention action
success.
Limited time to assess
infringement
The APR provides for a specific
regime for perishable goods 6 . In
respect of such goods, the term to
respond to the customs notification
and the term to initiate legal
proceedings is only three working
days from the notification of the
detention. Because of the short
and overlapping terms, this can
lead to practical problems when
the holder of the goods withholds
his objection until the end of the
In 2013, the EU customs authorities
detained almost 36 million items
suspected of infringing Intellectual
Property Rights (“IPR”).
three working day term, which
coincides with the end of the term
during which the IPR holder is
required to initiate legal action to
prohibit the release of the detained
goods. To ensure that the alleged
infringing goods are released, the
breeder can ask a civil court to
appoint a pre-judgement seizure
to preserve evidence immediately
after detention notification.
Inspection ‘on the spot’
The Dutch customs authorities do
not always possess the necessary
information to assess if the goods
are infringing any PVR or other
IPR. In practice, immediately
after detention, the IPR holder is
given an opportunity to have a
technical or legal expert analyze
the goods at the terminal. This
means that the IPR holder needs
to have a legal and technical
expert present in the jurisdiction
where border detention measures
are taken. Only in case of
counterfeit and pirated goods,
samples can be provided to the
IPR holder for further analysis. In
order to obtain samples of goods,
the breeder can aks a civil court
to issue an evidentiary seizure. It
is noted that under Dutch law,
separate proceedings will have to
be initiated to obtain access to
material seized pursuant to such
evidentiary seizure leave.
Risk
Finally, border detention of goods
can also present a risk to the IPR
holder. The IPR holder is required
to reimburse the customs for all
the costs which arise from the detention
measures and then claim
for compensation of such costs
from the infringer. Furthermore,
if the customs proceedings are discontinued
due to an act or omission
of the IPR holder, samples are
not returned timely or damaged,
or the goods are determined to
be legal, the IPR holder will be
held liable for damages suffered
by the holder of the goods. In
this respect it is noted that in The
Netherlands, the cost of the legal
proceedings in IPR infringement
cases is carried by the losing party.
Conclusion
The border detention measures,
particularly in combination with
civil measures, can serve as an effective
tool for PVR enforcement
in the Netherlands. However, a
breeder who is considering to file
a request for action by the Dutch
Customs Authorities should be
well prepared. In order to be able
to act quickly, breeders should
have technical and legal experts
available in the jurisdiction where
such measures are to take place. |||
1 Results on customs enforcement
of Intellectual Property rights,
results at the EU border 2013,
Publication Office of the
European Union 2014, p. 21. The
statistics over 2014 were not
yet published at the date of this
publication.
2 Regulation (EU) No 608/2013 of
the European Parliament and
of the Council of 12 June 2013,
concerning customs enforcement
of intellectual property rights and
repealing Council Regulation (EC)
No 1383/2003.
3 European Court of Justice, 1
December 2011, cases Nokia (C-
495/09) and Philips, (C-446/09). It
is noted that in legal proceedings,
the IPR holder will have to
evidence that there is a treat that
the goods will be put on the EU
market.
4 ‘Counterfeit goods’ are defined
in the APR as goods which are
the subject of (certain types
of) trademark infringement and
infringement of geographical
indications as further defined
in the APR. Furthermore, such
goods comprise packaging,
label sticker etc. infringing
a trademark or geographical
indication. 'Pirated goods’ means
goods that infringe a copyright or
a design right.
5 The IPR holder is, however, not
entitled to use this information
for other purposes than those
specified in article 21 of the APR,
including inter alia initiating
legal proceedings to determine
whether an IPR has been
infringed.
6 ‘Perishable goods’ are defined
in the APR as “goods considered
by customs authorities to
deteriorate by being kept for
up to 20 days from the date of
their suspension of release of
detention”.
About the author
Fleur Tuinzing-Westerhuis works as an IP lawyer at Houthoff Buruma,
one of the largest law firms in The Netherlands. Fleur specializes in
IP matters, with a focus on patents and plant variety rights. Fleur has
extensive experience in both patent litigation and litigation relating to
national and Community plant variety rights. In her daily practice, Fleur
represents domestic and international breeding companies that are
active in the Horticulture and Agrifood sectors. Over the past 10 years,
Fleur has litigated in various cases before the Dutch Courts, the Dutch
Board of Plant Varieties and the Office for Harmonization in the Internal
Market. Furthermore, Fleur assists clients in implementing customs
seizure actions based on the EU Anti-Piracy Regulation and advises on
license agreements.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 19
Company profile
Invokat
The easy way of obtaining PBR in Turkey
Turkey, being a UPOV member state and admitting breeders´
rights applications for 266 different varieties, has a continuously
developing protection system in line with the directives of the EU. It
is now possible for the breeders to protect their varieties in an easy
way with lower costs.
Route 1: Varieties having existing DUS reports at the CPVO
This is the simplest and fastest way of obtaining PBR protection. Turkish
Ministry admits the DUS reports as if they were prepared in Turkey and
directly grants the PBRs after examining formal issues (denomination,
formal documents, translation of the DUS report etc.) and publication of the
application in the official bulletin.
Route 2: Varieties having no DUS report but claiming priority from an
application at the CPVO
A priority can be claimed from an application at the CPVO within 12
months, and in this case the Ministry waits for the outcome of the technical
examination until the end without the requirement of additional field tests and
technical examination. In this case, a technical questionnaire and translation
thereof need to be supplied to the Ministry.
DUS
The Ministry of Agriculture has very recently announced that DUS
report of an equivalent application for the same variety at the
CPVO shall be awaited in order to avoid repetition of the technical
examinations in Turkey, irrespective of the duration of technical
examination at the CPVO.
on a previous application at the CPVO has several advantages such as legal
certainty, accelerated procedure, and considerably low costs because the fees
for technical examination are not incurred. However, applicants are advised to
bear in mind that any negative report at the CPVO may have adverse effects on
the national application in Turkey.
As a further note, Routes 1 and 2 are available also for the varieties having
DUS reports obtained in UPOV states other than CPVO. But in this case, the
Ministry seeks the condition that technical examinations be carried out in
climate conditions similar to Turkey, otherwise repetition of the technical
examination on the national level is required.
Route 3: Varieties having no DUS report and not claiming priority but
having an equivalent application at the CPVO
The Turkish Ministry of Agriculture has very recently announced that, even
if a convention priority would not be claimed, a national application can
be interrelated with an equivalent application filed for the same variety at
the CPVO, in which case the Turkish Ministry waits for the outcome of the
technical examination, irrespective of the stage of the application at the CPVO.
In this case, a technical questionnaire and translation thereof as well as a
specific request to this effect need to be submitted to the Ministry.
Breeders can file applications within 4 years starting from the first
commercialization date, and in the case of trees or vines, within 6 years as
of the earliest date of commercialization abroad. Filing an application based
Invokat
Mr Aydin Mutlu
Agaoglu My Office 212, D: 241 Kat:14
Basin Ekspres Yolu, Tasocagi Cad.
No: 3 Bagcilar, 34218 Istanbul - Turkey
T +90 212 500 35 14
F +90 212 500 35 16
mutlu@invokat.com
www.invokat.com
20 www.FloraCulture.eu | CIOPORA Chronicle June 2015
From the Secretary General
Securing another
piece of the puzzle
Ciopora Chronicle sat down with CIOPORA Secretary General,
Dr. Edgar Krieger to learn more about the association’s future
challenges.
During the Annual General Meeting of CIOPORA in 2014 in The Hague, CIOPORA
members approved four IP Position Papers, on the Scope of Protection, Minimum
Distance, Breeders´ Exemption and Exhaustion.
CIOPORA Secretary General Dr Edgar Krieger.
What has been achieved in the recent AGM in Hamburg in April 2015?
Dr. Edgar Krieger: “During the AGM in Hamburg, the CIOPORA members placed another
piece of the puzzle, which deals with General Plant Breeders´ Rights Matters.”
What is this about?
“This paper is a comprehensive paper which contains the CIOPORA positions on matters such as
genera and species to be protected, the process of application and granting, conditions for protection
(e.g. novelty), DUS examinations, ownership of plants, DUS reports and DNA samples and
analyses, the composition and use of variety denominations, compulsory licenses, duration and
cost of protection, provisional protection and the enforcement of PBR and its cost.”
This sounds like a mixture of many things…
“Yes, the paper covers a variety of topics which are important for breeders but do not require a
single paper for each.”
Dr Krieger, can you highlight some of the topics in the paper?
“The paper has 11 pages, so I can give you only a limited selection of some important points.
For example, in reference to Novelty, the triggering point for the start of the grace period should
be linked to the physical transfer of propagating material for commercial purposes as opposed
to the ‘sale’ of this material in order to avoid confusion due to different legal understandings of
the term ‘sale’. CIOPORA also supports the development of harmonized application forms and
technical questionnaires and the set-up of technical tools for electronic applications, including
a harmonized language regime. The ultimate objective should be an optional system which
would allow breeders to apply for their new variety on one application form (electronically) and
choose the countries in which the application shall be accomplished. This should be combined
with a DUS examination for the variety in a competent examination office and the take-over of
the test report in the countries chosen. CIOPORA also requires that the provisional protection
be strengthened. That means that, in order to create a real incentive for breeders to launch their
innovation at an early stage, the breeder of the new variety must be in the position to control
the exploitation of his variety, i.e. to grant licenses and to stop ‘infringers’ even before the
protection title is granted. CIOPORA is also of the opinion that the use of the variety denomination
should not only be obligatory in relation to propagating material but also in relation to
harvested material. This is already the case for many species of fruits because of the marketing
rules. Finally, CIOPORA made a list of enforcement measures, which should be provided for by
national legislation in order to allow effective enforcement of breeders´ rights.”
What is left on the agenda of CIOPORA?
“In the coming months we will continue to discuss, in particular, the matter of Essentially
Derived Varieties (EDV) and Patents for Plant Innovations, and hope to be able to approve these
papers during the next AGM in Istanbul, the last week of April 2016.” |||
CIOPORA Chronicle June 2015 | www.FloraCultureInternational.com 21
Marketing Research
Millennials, or
‘Gen Y’, are terms
used to describe
young adults born
between 1980 and
1997. Is a rose is a
rose is a rose… for
millennials?
For millennials, a rose is definitely still a rose.
Gen Y consumers:
flower purchasing
behavior and social media
by Prof. Dr. Tracy A. Irani
Today, there are over 80 million
‘Gen Y’ consumers in
the U.S., which represents
the largest demographic of consumers.
‘Gen Y’ is fundamentally
different than other consumers –
especially when it comes to buying
flowers.
The Typical Flower
Buyer vs. The Next
Generation
The typical flower customer is 35+
years old, female, with mid-tohigh
income. In a 2009 Society
of American Florists’ (SAF) study
comparing Gen Y to Baby Boomers
(1946-1964) and Gen X (1965-
1980) consumers, results indicated
that Gen Y consumers are less
likely to have a high appreciation
of flowers or to connect flowers
with positive emotions. In short,
Gen Y consumers do not identify
as much with flowers as previous
generations, which presents a challenge
to the industry.
Purchase decisions
Catering to changing consumer
tastes and purchase patterns is
important in marketing, and doing
so effectively requires insight
into target consumers’ needs and
wants. Gen Y consumers, the most
social, technologically-advanced,
and connected of consumers, are
also the only recent generation to
consider themselves less successful
than their parents. Having
lived through a severe economic
downturn, they are more likely to
be unemployed or under employed.
Because of these challenges, Gen Y
consumers think differently about
how they spend and what they
value. There is a need to examine
this audience segment, not only
About the author
Dr. Tracy Irani is the Chair of the
Department of Family, Youth and
Community Sciences. She holds the
rank of Professor in the College of
Agricultural and Life Sciences. She
is a nationally recognized social scientist
in the areas of public understanding
of science and technology,
crisis and risk communication, and
public opinion issues analysis.
22 www.FloraCulture.eu | CIOPORA Chronicle June 2015
in terms of buying trends but also
with respect to what factors influence
these purchase decisions.
Uncovering ‘Gen Y’s
floral preferences
Our team of researchers decided
to address this need by conducting
a study of the floral fragrance and
color preferences of young adult
consumers. We wanted to know
what combinations of flower color
and fragrance were most appealing
to Gen Y consumers. We also
wanted to know if young adult
consumers would respond to novel
combinations of fragrance and
scent.
Novelty is used as a way to attract
consumer attention in marketing,
and breeding techniques have
advanced to the point where it is
technically possible to breed novel
flowers with unexpected scents.
Would Gen Y be drawn to a red
flower with a citrusy scent, for
example, because it was novel and
unexpected?
Finally, we wanted to find out what
Gen Y consumers thought about
social marketing of flowers and
how social marketing strategies
might be adapted for this audience.
To complete this project, two experimental
studies were conducted.
Eighty-six subjects participated
in the first study and 121 in the
second.
Fragrance and colour
In the first experiment, we asked
consumers to smell a series of four
flower fragrances — sweet, spicy,
rosy and citrusy — which were
derived from natural flower scents.
Subjects were then asked to choose
which of the four fragrances they
preferred, as well as their preferred
color from a list of most-commonly
available choices — red, pink,
yellow, purple, white, green and
blue. Next, subjects were asked
to select their preference from 20
‘most-preferred combinations’ of
fragrance and color.
In the second experiment, we chose
the five most and least preferred
fragrance and color combinations
from the previous experiment, then
asked our subjects to smell them
and indicate a favorite.
This project was
made possible by
a grant from the
American Floral
Endowment,
http://endowment.
org/grants/
See full report:
Not Your
Grandmother’s
Flowers: What
Combination of
Flower Fragrance
and Color is
Preferred by
Young Adult
Consumers?
Report #709 (2011)
by Tracy A. Irani,
Dave Clark, Becky
Raulerson, Deidra
Slough, University
of Florida,
Gainesville
Overall, young
adult consumers
preferred the
fragrance + color
combination that
they associated
with the expected
flower stimulus
used – which was
a rose.
Results of the two studies showed
that fragrance and color are very
important to Gen Y consumers
when considering flower purchases.
Sixty-six percent of Gen Y
subjects had a fragrance preference
for flowers, with the highest
percentage of consumers preferring
a sweet fragrance. Seventy-nine
percent of subjects had a color
preference, with red or pink as top
choices. When color and fragrance
combinations were joined, subjects
were most likely to purchase the
rosy + red combination, and least
likely to purchase a white flower
with no scent. Overall, young adult
consumers preferred the fragrance
+ color combination that they
associated with the expected flower
stimulus used – which was a rose.
Social media
strategies for millennial
consumers
Next, our study looked at Gen
Y consumers’ perceptions of
Facebook, the social media tool
most widely used by retailers as
an avenue to market flowers. The
study found that Gen Y consumers
would be unlikely to purchase
flowers from a retailer solely based
on Facebook presence. The great
majority, 98%, did not “Like” any
major flower retailers on Facebook,
and a similar percentage had not
joined any retailers’ Facebook
groups.
Gen Y consumers felt retailers
using Facebook should include
information on price, promotions,
and shipping, as well as the variety
of flowers and scents available for
purchase. Additionally, although
almost 27% said they would be
likely to shop for flowers online
using a web link, most were either
undecided or unlikely to do so.
The results of the study correspond
to what is known about social media
marketing and young adults.
Gen Y users tend to value social
engagement and are less inclined to
respond to direct sales solicitations
via social marketing. To better
reach Gen Y consumers, floral
companies should integrate social
media with traditional media and
provide value-added, consumerrelationship
building content via
blogs, ‘how-to’ videos, promotions
and events. Because connecting
with consumers is important to
Gen Y, testimonials and vignettes
are also a good addition to social
mediums.
Based on the results of the study,
social media cannot be the only
tool in marketing to Gen Y
consumers. Just as these consumers
chose the ‘expected’ flower
+ fragrance combination, their
expectations of social media are
focused more on networking and
entertainment than retail sales.
For millennials, a rose is definitely
still a rose. |||
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 23
Zooming in
Ciopora Chronicle
sat down with
Mr. Stephan Hertz,
co-founder of
Miniatur Wunderland
in Hamburg, the
largest model
railway in the world
and one of the
most successful
permanent
exhibitions in
Europe.
by Anna Kaehne
The Superlative of Miniature:
Our search for inspirational
stories of innovation brings
us back to our home
harbor, the city of Hamburg, where
a group of visionary minds dreamed
up an entirely new world. But unlike
many fantasy worlds created
by minds of writers and artists, this
vast miniature universe lacks any
kind of escapism. It is a superlative
mini-version of the human realm
where both ordinary and extraordinary
co-exists side by side and all
manifestations of human activity
receive an equal tribute.
Ciopora Chronicle: Mr
Hertz, currently at Miniatur
Wunderland your 13 km
long model railway spreads
over 1.300 m 2 , exhibits eight
thematic sections, including
a true-to-life model of
international airport, and
attracts over 10 million
visitors per year. And yet this
monumental work is a result of
a single mind spark. Could you
tell us what happened in 2000?
Stephan Hertz: “In July 2000, my
partner Frederik Braun was visiting
Zurich. There he came across a
railway model shop, which at once
brought back some good childhood
memories. The idea of realizing
a long forgotten dream promptly
matured. On the very same day
he called his twin brother Gerrit
knocking him down with the
following words: ‘We are going to
build the largest model railway in
the world’.
Gerrit, more sceptical by nature,
first questioned Frederik‘s state of
mind and didn’t take the idea too
seriously. However, after six more
calls from Frederik on the same
day, Gerrit realized that his brother
was indeed very serious about his
project. The idea of earning a living
with their former hobby inspired
him as well.”
Back in 2000, who was your
target customer?
“During our initial brainstorming,
hundreds of ideas were generated.
The general concept was creating an
experience for the entire family. We
didn‘t want a sterile exhibit behind
a glass pane, but a complete model
of the real world, where the fully
functional railroad is only one of
the many more highlights. The idea
was to create a world which equally
inspires men, women and children
to dream and marvel. Our visitors
of all demographics are able to find
something to identify with in our
exhibition.”
The world you have jointly
created with your partners
replicates the real world at
1:87 scale. Can this scale be
also applied to the technical
side of the development
process?
“In fact, the small scale presents,
more often than not, the biggest
challenge. But our team always
comes up with creative ideas, many
of which we manage to realize. Only
the elaborate creative process allows
us to craft true-to-life scenes, such as
e.g. our fitness center where, thanks
to the innovative use of magnets, a
handful of figurines can enjoy their
daily work-out.”
In terms of innovation and
technology, in which parts
of exhibition have you so far
achieved the most prominent
breakthrough?
“All our projects are dear to my
heart, but if I need to pick just a few,
I would name our Knuffingen Airport,
where we managed to establish
live air traffic with airplane models
in the scale of 1:100; our real water
basin in Scandinavia, which we
manage to keep algae-free and which
is frequented by our large ships. For
the precise navigation of ships we
had to come up with an entirely new
approach to the navigation technology,
which many experts of the
real-life naval navigation considered
impossible. The biggest challenge
for us was the manoeuvring, which
in our miniature world required a
precision of 1 mm. Initially, we tried
using the infra-red camera surveillance,
but due to multiple problems
we dismissed it after 15.000 lines of
source code had been written. Then
we focused on the use of ultrasonic
devices and managed to prove that
by using 8 measurements per second
24 www.FloraCulture.eu | CIOPORA Chronicle June 2015
a brand new small world
the required precision could be
achieved. Simultaneously, an
infrared laser system with an
accuracy of about 0.6 mm was
developed. The current software
for the ship manoeuvring accounts
for 75.000 lines of source code.”
Could you tell us more about
the process of conquering
the sky at your very own
Knuffingen Airport?
“From the moment of founding of
Miniatur Wunderland it was clear
to us that we wanted to portray
each and every type of mobility,
so the decision to build an airport
came naturally. The construction
took about six years from June 2005
to May 2011. We spent the total
of €3.5 million on the project and
82 team members were involved in
creation of our masterpiece.”
It sounds like at no instance
the construction of the
miniature world is less of a
task than the same activity
in the real life. Experts from
what professional fields do you
require for the development of
the exhibition?
“We need everyone, regardless of
the background! From craftsmen
and carpenters to artists, designers,
professional model builders,
electricians, IT professionals and
simply enthusiasts. The most
important thing is that our staff
loves what they do.”
And the last, but not least:
Miniatur Wunderland has
stated on record that its
success might be partly based
on its “non-commercial”
character, in other words,
on ‘irrational conduct as a
success factor’ (4365 Days of
Wunderland 2012:116). Could
you please explain what
exactly this statement means
to you?
“We currently employ 350 staff
members. Miniatur Wunderland
relies on the human factor. Business
consultants would probably
insist that only a half of this staff
could manage to create the same
amount of trees, buildings, figurines
and trains, but this would
strip Wunderland off its “Wonderland”
factor. We want to provide
our team with freedom to create
the layout they envision, even at
cost of time. And this is exactly
what our visitors perceive when
they discover all the affectionately
crafted details, even in the
remotest corners of our miniature
world.” |||
About the author
Miniatur Wunderland’s
co-founder Stephan Hertz.
The world’s
smallest garden
Inspired by the International Federal Garden
Show, which took place in Hamburg in 2013, the
team of Miniatur Wunderland decided to create
their own smallest garden of the world. The
result: 0,0003 ha exposition, which playfully and
symbolically reproduces the processes involved
in creation of a real-life garden. CIOPORA innovative
plant breeders, like no one else, can
appreciate the meticulous work invested in
creation of this wonderful miniature plant scenery.
The cover picture of the CIOPORA Chronicle
was taken in the “smallest-largest” garden of
the world at Miniatur Wunderland Hamburg.
Chronicle cover 2015 by Evgeny Makarov.
MINIATUR WUNDERLAND GARDEN QUICK FACTS
Area: 3 m 2
5.500 working hours
Budget: €170.000
150.000 of hand-crafted flowers, including 17.800
roses, 22.800 dahlias and 43.900 summer flowers,
and 140 trees created by 20 employees and many
volunteers. CIOPORA thanks the team of Miniatur
Wunderland Hamburg for their kind cooperation.
Anna Kaehne worked at CIOPORA Office until May 1 st 2015. At CIOPORA she was responsible for association’s
internal and external communications including the relations with press, production of media and marketing
materials offline as well as online. She was the person behind the association’s newsletter, press releases, website
and other communication projects. Anna holds a Magister Degree in English and Slavic Studies from the University
of Magdeburg. In her homeland - Ukraine - she studied International Law.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 25
Business Management
Last November,
2014, CIOPORA
communicated to
its membership, and
then to the public,
that a draft new
Code of Conduct
had been developed
in Kenya under the
coordination of
the Kenya Flower
Council (KFC).
by Bruno Etavard
New Code of Conduct
in Kenyan flower industry
This draft new Code for
the horticultural industry
specifies the legal compliance
requirements for the responsible and
safe production of cut flowers and
ornamental horticultural products
throughout Kenya. The Code also applies
to the procurement of inputs and
market placement of cut flowers and
ornamental horticultural products.
Guidelines
This draft new Code is intended to
set guidelines for the entire horticulture
industry supply chain in Kenya.
In short – it cannot be ignored. Although
the Code does not refer only
to Intellectual Property (IP) matters
and does not fall directly within
the scope of CIOPORA and IRBA,
CIOPORA’s Cut-Rose Crop Section,
both associations are invested in the
practical consequences of the Code
and are committed to voicing their
comments.
Kenya is a major market for both
CIOPORA and IRBA members,
both in terms of exploitation of
intellectual property titles and also
as a country where breeders enjoy a
quality relationship with the local
authorities and share common hope
for the successful development of the
horticulture industry in Kenya.
The latest version of the draft new
Code has been submitted to the
Kenya Bureau of Standards in
order to ensure that the structure of
the document fulfils international
standards.
From March 20 to May 19, 2015,
the Code was available for public
review and for further comments.
During this time, CIOPORA
submitted comments on behalf of
its members to the Kenya Bureau of
Standards.
bers were informed that revisions
were to be made on the Code.
Over the past year, a number
of meetings have occurred in
Kenya regarding the new Code.
Designated IRBA representatives
located in Kenya were invited
to participate in these meetings
and contribute proposals for the
preliminary text. In August 2014,
a first complete draft of the new
Code became available with some
points open for further discussion.
Between August and December
2014, CIOPORA and IRBA communicated
their concerns regarding
the Code to the KFC.
Highlights for
plant breeders and
propagators
The new Code is intended to
include all players in the industry
including, but not limited to,
growers, propagators, breeders,
consolidators, shippers and cargo
handlers, with the aim of enforcing
existing international codes
A revision process
throughout 2014
The current Code of Conduct has
been in existence since 2004. In
early 2014, CIOPORA/IRBA memfor
proper agricultural and horticultural
practices and guidelines.
In particular, it is important
that the new Code very clearly
distinguishes between “breeders”
and “propagators”, as the mix of
breeder and propagator may create
confusion since each have different
functions within the added-value
chain.
In regards to IP matters, the draft
new Code mentions the existence
of the Kenyan Plant Breeder’s
Rights and that all players in the
industry must comply with these
rights. This is good step forward
for the entire industry as continued
innovation in horticulture is key
for continued future success.
Proper horticultural practice
requires that the IP is respected
by all.
Parallel to the revision of the Code,
one can also advocate for enforcement
tools to be strengthened for
the benefit of all fair players in the
industry, as is provided for in many
other countries.
26 www.FloraCulture.eu | CIOPORA Chronicle June 2015
Avoiding pests
and diseases
As a direct consequence of the
draft new Code, it is imperative
that all actors and/or links in the
production chain understand that,
through the new Code, there will
be an overall responsibility by all
links to control and avoid diseases
and pests. This is seen as the core
of the new draft Code and implies
that ALL parties involved in the
supply and production of horticultural
produce must be registered
with Kenya’s phytosanitary services,
KEPHIS, and comply with relevant
documentation requirements.
Accordingly, on a day-to-day basis,
breeders and propagators must keep
accurate records that demonstrate
the source of the propagating material
supplied by them.
As a direct consequence, it appears
in the draft new Code that responsibility
of planting material is being
highlighted and the onus is being
put on breeders and propagators to
supply stock that is free from pests
and diseases.
A guarantee policy, including plant
health assurance, is foreseen in
compliance with the Plant Protection
Act, Cap 324 of the laws of
Kenya and the International Plant
Protection Convention (IPPC).
This policy states that all parties
should ensure that the transfer of
plant material avoids the transfer
of pest and disease. Accordingly,
the draft new Code mentions that
buyer-seller contracts of plant material
should describe the compensation
terms and conditions of pest
and disease traceable to the breeder
material.
Regarding the liability for pests and
diseases, CIOPORA is confident
that it is not the intention to unreasonably
expand such liability to
About the author
sdfvdx wedsfvedc
breeders, when such breeders are not
involved in the production and trade
of propagating material. CIOPORA
advocated that these be addressed at
a later stage, when needed.
Next steps
The Kenya Bureau of Standards
made the final version of the Code
available to the public on May 19,
2015. CIOPORA and IRBA took
this opportunity to submit their
standpoint to the Kenyan Authorities.
CIOPORA will also meet with
these authorities and continue the
dialogue.
Because of the importance of Kenya,
both as a hotspot for the exploitation
of Intellectual Property titles and a
country where breeders enjoy quality
relationships with local authorities, it
is imperative that CIOPORA and its
members contribute to the development
of the new draft Kenyan Code
of Practice and the development of
all parties’ activities. |||
About the author
Bruno Etavard is CIOPORA Board Member
representing Meilland International. Bruno has
been active in the field of plant breeding since
1982. In 1988, he joined Meilland International,
one of the world’s leading rose breeding
companies, as a license manager. He has been
IRBA (the International Rose Breeder Association)
member since 1988 and currently serves as the
association's vice-chair.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 27
IP in the World
The Agricultural
Growth Act is
designed to
modernize Canada's
federal agriculture
legislation
and encourage
innovation in the
sector. Among
the key changes
implemented
through this
legislation are
amendments
to the Plant
Breeders' Rights
Act (PBR Act) to
encourage increased
investment in
plant breeding in
Canada and foster
greater accessibility
to foreign seed
varieties for farmers.
by Anthony Parker
Canada amends its Plant
Breeders´ Rights Act to
conform to UPOV’91
February 25 th , 2015, marks an
important date for Canada’s
agriculture, horticulture and
ornamental sectors. On that day,
the Agricultural Growth Act, a
statute modernizing nine pieces of
federal legislation, received royal
assent, and a few days later on February
27 th , 2015, these amendments
came into force, becoming the
law of the land. Among the more
notable changes introduced were
amendments to the Plant Breeders´
Rights Act (PBR Act) to bring it
into conformity with the 1991 Act
of the International Convention for
the Protection of New Varieties of
Plants (UPOV’91).
Amendments
point-by-point
Changes to the PBR Act include all
the compulsory UPOV’91 articles
and will strengthen the rights of
breeders and improve accessibility
to the intellectual property framework
by:
• extending plant breeders rights
beyond sale of propagating material
and the production of propagating
material intended for sale,
to include reproduction, import,
export, conditioning (clean, treat),
and stocking for the commercial
purposes of propagating;
• allowing plant breeders to sell a
variety in Canada for up to one
year before applying for PBR protection
in order to test the market,
advertise, or to increase stock;
• providing automatic provisional
protection for a new plant variety
from the date of filing, which
would allow applicants to exercise
their rights while applications are
pending "grant of rights" (however
no legal action in respect of provisional
protection could be initiated
until after the rights are granted);
Plant Breeders´ Rights gave Canada’s potato producers
access to internationally developed varieties.
• extending the protection period
from the current 18 years to 25
years (for trees, vines or any specified
categories) and 20 years for
all other crops, unless the breeder
surrenders their rights earlier;
• ensuring that, if a breeder is
denied a reasonable opportunity
to collect royalties on the sale
of propagating material (e.g.
cases where it is stolen or illicitly
shared), he/she may exercise rights
on the harvested material (e.g.
grain).
Breeders´exemption
Of course, the amendments also
include the mandatory benefit
Hibiscus trials
28 www.FloraCulture.eu | CIOPORA Chronicle June 2015
sharing provisions of UPOV’91.
Namely: the “breeders´ exemption”
which allows unrestricted access to
protected varieties for the purpose
of breeding other, new varieties;
the “researchers’ exemption”,
which provides unrestricted access
to protected varieties for experimentation
and scientific investigation;
and finally, the “private/noncommercial
exemption” which
permits the propagation of protected
varieties by home gardeners,
hobbyists, subsistence farmers, etc.
Canada has also elected to include
the optional “farmers’ privilege” in
the suite of amendments, explicitly
permitting farmers to continue
saving, conditioning (clean, treat,
etc.), and storing seeds of protected
plant varieties for replanting on
their own land.
Public consultations
The Government of Canada has a
strong tradition of consulting with
the impacted stakeholder community
before making changes to
the Intellectual Property framework
for protecting new plant
varieties. In fact, Canada’s original
decision to enact a PBR law, based
on UPOV’78, was the result of
strong support from farmers and
plant breeders alike. In 2004/05
the PBR Office conducted national
consultations on the possible adoption
of UPOV’91. The outcome
of these consultations was that
impacted stakeholders were in
favor of improving our Intellectual
Property framework. Since tabling
of Bill C-18, the Agricultural
Growth Act, in Parliament on
December 7 th , 2013, I had the personal
pleasure of conducting over
35 individual consultations with
various organizations representing
the agriculture, horticulture, and
ornamental sectors. These more
recent consultations reconfirmed
what we had observed almost a
decade earlier, that the stakeholder
community, both domestically and
internationally, strongly supported
Canada’s move towards ratifying
the UPOV’91 standard.
Endorsement of
the industry
In fact, a coalition of Canadian
farmer and value
chain organizations called
“Partners in Innovation”
(www.partnersininnovation.ca)
formed specifically to encourage
and support the federal government
in adopting UPOV’91. This organization
is comprised of a diverse
group of over 20 organizations,
representing producers of grains,
oilseeds, pulse crops, fruit crops,
potatoes, and flowers, encompassing
the vast majority of Canadian
agriculture and horticulture.
Overseas, organizations such as
the International Community of
Breeders of Asexually Reproduced
Ornamental and Fruit Varieties
(CIOPORA), the International Seed
Federation (ISF), and the International
Association of Horticulture
Producers (AIPH), have also
been strong and vocal proponents
Mum varieties
protected under
Canadian Plant
Breeders´ Rights.
Some plants
are reproduced
vegetatively
from plant
cuttings or
budwood. This
includes many
ornamental
plants, such
as roses and
spirea, and
most fruit, such
as apples and
strawberries.
of UPOV’91 amendments to
Canada’s PBR Act.
Beneficiaries
By amending its legislation,
Canada has listened and
responded to the needs of its
stakeholders and fulfilled a commitment
made in 1992 when
we became a signatory to the
UPOV’91 Convention. Updating
Canada’s PBR Act will stimulate
innovation in domestic plant
breeding and encourage foreign
breeders to release their varieties
into our marketplace. In fact,
the ink is barely dry on the law
and we have already witnessed
increased investments and new
partnerships form between Canadian
seed companies and foreign
breeders. In the end, Canadian
farmers and growers will be the
beneficiaries of these changes.
Securing access to a greater diversity
of high yielding and diseaseresistant
varieties will help
Canadian farmers meet market
demands and remain competitive
internationally. We are pleased
to have reached this important
milestone, and look forward to
continued collaboration with the
stakeholder community to fully
realize the advantages of moving
to UPOV’91. |||
About the author
Anthony Parker is Commissioner of the Canadian
Plant Breeders' Rights Office (PBRO) which is part
of the Canadian Food Inspection Agency (CFIA).
CFIA administers the Plant Breeders' Rights
Act (1990) and Regulations which provide legal
protection to new plant varieties.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 29
IP in the World
Turkish PBR Law
that has been in
force since January
2004 fully complies
with the 1991
Act of the UPOV
Convention. Turkey
became the 65 th
member of the
UPOV Convention
on November 18,
2007, making PBR a
relatively new field
of IP in Turkey.
by Ersin Dereligil
and Yeşim Metin
About the authors
Ersin Dereligil and Yeşim Metin
work for Destek Patent, Turkey.
Recent changes in the
Turkish PBR practice
Plant Breeders´ Rights (PBR),
also known as Plant Variety
Rights (PVR), are rights used
to protect new plant varieties that
are distinct, uniform and stable.
Plant varieties are protected by
Turkish PBR Law No. 5042 in
combination with the implementation
regulation and the national
plant variety list, including the list
of plant species eligible for PBR
protection.
A body of the Ministry of Food,
Agriculture and Livestock, the
General Directorate of Crop
Production and Development
(BUGEM) is the authority
handling the PBR applications
in Turkey, whereas the Variety
Registration & Seed Certification
Centre (TTSM) is responsible for
DUS examinations.
Novelty
A plant variety shall be deemed
novel if it has not been commercialized
for four years abroad or for
one year on the territory of Turkey
prior to the national application.
The same four-year (six years for
trees and vines) requirement holds
for plant varieties for which PBR
applications has been filed abroad.
In order to comply with the novelty
requirement, we strongly advise
foreign plant breeders to first file a
PBR application abroad and later
proceed with the application for
the variety registration in Turkey. If
a variety is applied for registration
in Turkey and exceeds one year, it
will not be possible for this variety
to later have PBR protection in
Turkey due to lack of novelty.
Unfortunately, we have recently
seen several cases where PBR applications
filed by foreign breeders
were rejected by the PBR office.
Although these applications were
duly filed within the novelty
period of 4/6 years, the breeders
disregarded their earlier Turkish
PBR applications filed either by
themselves or by their distributors.
Take advantage of
priority rights
The priority term is one year from
the earliest PBR application date.
It is always beneficial for a PBR
application to take advantage of
the priority right in Turkey. Since
the results of the foreign DUS examination
can be taken over by the
Turkish DUS examination authority
TTSM, it is recommended to
file a Turkish PBR application with
a priority claim, i.e. from CPVO, in
order to avoid an additional DUS
test and to save examination costs.
Recent changes in
Turkish PVP
The PBR application procedure
strictly depends on whether a DUS
test has been completed by a foreign
authority prior to the filing date in
Turkey. Prior to the latest changes
of the regulation of December 31,
2014, it had not been possible to file
and suspend procedures for a Turkish
PBR by making reference to a
preceding foreign application with
a pending DUS test. At present, it
is possible to file for a PBR without
a DUS report and to delay the
Rosa Isparta City.
procedures until the tests are completed
by the foreign test authority
and thus to avoid repeating the
DUS examination. It is important
to note here that the “prior/earlier”
application must be filed in one of
the UPOV member states within the
novelty period and the document
proof thereof along with a copy of
the Technical Questionnaire (TQ)
should be included while filing a
PBR application to the BUGEM.
Hence, the application will be assigned
the pending status (as in case
of applications with priority claim
mentioned above) until the foreign
DUS report has been completed
and can be submitted to the Turkish
authorities.
The National List of
Plant Varieties
The Turkish PBR Office is continuously
working on expansion of
the national list of plant varieties
eligible for Plant Variety Protection.
The list was updated in 2009, 2011
and 2014. As a result of the latest
update, Cynara cardunculus and
Phalaenopsis were included and can
now be protected by the national
PBR. A total of 256 plant varieties
are currently eligible for PBR
protection in Turkey. |||
CIOPORA Chronicle June 2015 | www.FloraCultureInternational.com 31
IP in the World
The Russian
Federation has been
a member of UPOV
since April 24,
1998. Although the
current Russian PBR
legislation presented
in Chapter 73 of Part
4 of the Russian Civil
Codex corresponds
to the minimum
requirements of the
1991 Act of UPOV,
it contains a number
of specific features.
by Juriy A. Rogovskiy
Plant Variety Protection
in Russian Federation
For instance, the purview of
the law extends to both plant
and animal breeders´ rights,
whereas the plant breeders´ title is
referred to as “a patent on selection
attainment”. The duration of
protection set by the Russian Civil
Codex amounts for 30 years for
all species except vines, tree, fruit
and forest plants, which enjoy a
prolonged period of protection of
35 years.
The patent is issued to either a physical
person – the actual breeder – or
to the employer thereof, in cases
where plant breeding was executed
as a part of the job responsibilities.
In order to be registered, a plant variety
must be distinct, uniform and
stable (DUS). Once the application
for variety registration is filed,
the variety enjoys the provisional
protection. The main requirements
of variety denominations as well as
the provisions of the Russian Civil
Codex guaranteeing the exclusive
character of the breeder’s right
fully correspond to the 1991 UPOV
Standard. The latter implies that
the plant material produced without
a proper authorization by the
title holder, falls under the scope of
the breeder’s right.
PBR application and
registration procedure
An application for a Russian PBR
can be filed for one plant variety at
a time by one or several applicants
as well as by his/their legal representative.
The applicants should
provide a formal application for the
patent on selection attainment, a
plant variety description form, an
application fee payment receipt or
an application for the discount of
the fee. All documents should be
provided in Russian or include the
official translations. It is required
that, while dealing with the Russian
governmental authorities,
foreign citizens and companies
DUS tests
The DUS tests in the Russian
Federation are run in accordance
with the UPOV guidelines. Apart
from running its own DUS tests,
Gossortkomissiya practices the
take-over of the DUS test results
from the competent organs of the
UPOV member states. The DUS
tests are conducted for both: applications
for patents on selection
attainments and applications for
inclusion of plant varieties into the
National register of plants admitted
for use. Once it is determined that
the plant variety corresponds to the
DUS requirements, Gossortkomissiya
draws up the official descripare
represented by the authorized
agents with the seat on the territory
of the Russian Federation.
Preliminary application
The preliminary application check
is undertaken within one month
from the filing date. During this
procedure Gossortkomissiya
defines the priority date, runs the
evaluation of the proposed variety
denomination and reviews the provided
documents. Gossortkomissiya
maintains the right to request
additional or lacking documents,
which must be provided by the
applicant within the defined term.
A successful preliminary check
results in notification of the applicant
along with the clarification
of the further fees, which needs
to be covered to proceed with the
DUS test.
32 www.FloraCulture.eu | CIOPORA Chronicle June 2015
tion of the variety, includes the
variety into the State register of
protected plant varieties and issues
a publication about the grant of
the title in the Official bulletin,
on its website and in the UPOV
database.
Authors versus
title holders
The Russian PBR registration
procedure foresees the issue of
the authorship certificate along
with the grant of the PBR title. In
cases where the author (breeder)
and the patent applicant are not
the same physical or legal entity,
the name(s) of author(s) must be
indicated in the application form.
According to provisions of the
Russian Civil Law, the author of
the variety is entitled to remuneration
by the patent holder during
the entire period of protection,
whereas his total yearly reward
should amount to not less than
2% of the title holder’s annual income
generated by his exploitation
of the plant variety in question.
The title holder is responsible for
maintaining the plant variety during
the entire period of protection.
License agreements
and right transfer
A title holder can grant a right
to undertake actions in regard of
the plant material of his variety
to others by means of a license
agreement. In case of grant of a
sole license, the licensee receives
an exclusive right to exploit a
variety in question, whereas the
parties are free to contractually
define which actions in regard to
the plant material of the variety
can be still undertaken by the
licensor. On the contrary, an
ordinary license does not limit the
licensor in actions in regard to the
plant material of his variety and he
maintains the right to issue further
licenses to third parties. In some
cases the title holder can announce
the issue of an open license, which
basically allows everyone who
pays the fee and notifies the title
holder to exploit the plant variety.
In some cases the Civil Codex of
Russian Federation also foresees
the issue of compulsory license.
Registration in the
National register of
plants admitted for use
All plant varieties commercialized
on the territory of the Russian
Federation should be registered
in the National register of plants
admitted for use. In order to
comply with the deadlines of the
next examination season, the
application for inclusion in this
register should be filed before
January 15 for winter grains, vines
and fruit species and not later than
December 1 for all other species.
Such examinations are aimed at
evaluation of serviceability of plant
varieties. Depending on genus and
species in question (Lists “A”, “Б”
& “В”), growing trials, laboratory
and phytopathology tests, as well
as expert evaluation can be a part
of the examination process. These
measures are carried out by the regional
centers of Gossortkomissiya.
The serviceability of plant varieties
is defined by their productivity,
disease and pest resistance, quality
of produce and other economic
and biological characteristics, for
which certain standards are set by
the government. The results of the
serviceability tests are reviewed in
the regular crop expert meetings.
Russian PBR in figures
In 2014 Gossortkomissiya received
the total of 740 PBR applications.
The applications by foreign
breeders amounted for 25% (184
applications) of the total and originated
from 16 different countries,
including Germany (20), the
Netherlands (38), USA (55), and
France (26).
Currently, there are 4.134 patents
on selection attainment in force
on the territory of the Russian
Federation. As for the National
register of plants admitted for use,
Gossortkomissiya received a total
of 2.306 applications, including
1.018 (44%) applications from
abroad. As of February 12, 2015,
the National register of plants
admitted for use contained 17.862
plant varieties. |||
For more information
contact Gossortkomissiya at
gossort@gossort.com or visit its
official website: www.gossort.com.
The Russian delegation meets UPOV’s
Vice-Secretary General Peter Button.
Pictured left is Juriy A. Rogovskiy.
About the author
Juriy A. Rogovskiy is Deputy Director at Gossortkomissiya (Russian PVR Office).
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 33
Production and Trade
Over the last 30
years Ecuadorian
floriculture has
grown significantly
as an important
supplier in the global
cut flower market.
The increases have
been steady in both
quantity and quality
for the import
markets.
Ecuador grows more than 300
varieties of roses, which are known
especially by length of the stems
(sometimes more than 1 meter), and
the size of the bloom (probably the
largest in the world), and the bright
and beautiful colours of their petals.
Latitude and longitude,
altitude and attitude
by Alejandro Martínez
About the author
Alejandro Martínez is
President of Expoflores.
For this article I am using
a title from a presentation
by Dean Rule because it
expresses precisely what our activity
in Ecuador towards the market
really means. I have been involved
with this marvelous sector for
three years now, and one of the
most impressive things I have seen
was the Ecuadorian cut flower
industry’s attitude towards problem
solving. The crisis of the Russian
market and the revaluation of the
US dollar have presented serious
problems for the entire sector in
terms of falling-off in demand and,
thereby, overflow in supply.
Turbulent market
A few months ago Expoflores held
a meeting with 205 growers in
attendance. As an association, we
have been continuously working
with the Government in order to
achieve a number of incentives that
can help our industry overcome the
turbulent market. What impressed
me the most was that after we had
explained what was being discussed
with the Government, many growers
started raising their hands and
sharing their ideas on how all of us
can help each other and work to-
gether to become more efficient and
face the problems no matter what
the Government could implement.
From the vast amount of ideas
expressed, three were picked and
have been implemented by us over
the period of the last two months,
Ecuador has the longitude and the altitude to produce great flowers, especially roses.
34 www.FloraCulture.eu | CIOPORA Chronicle June 2015
Over the last 30 years Ecuadorian floriculture has grown
significantly as an important supplier in the global cut
flower market.
and we are currently expecting to
see some first effective outcomes
towards the beginning of the fourth
quarter of 2015.
Free trade agreement
In November 2014, the EU and
Ecuador finalized the negotiations
of a free trade agreement. For both
parties the agreement marked an
important step forward in terms of
commerce, investment, entrepreneurship
and market development.
This is fantastic news for the Ecuadorian
floriculture. Europe receives
Over the
last 30 years
Ecuadorian
floriculture
has grown
significantly as
an important
supplier in
the global cut
flower market.
23% of our total exports (value)
and 19% of the total volume. There
is still an enormous potential for
growth in this important market
and I believe that signing the free
trade agreement will help us meet
this goal. The negotiation was
completed in short time period
with minor setbacks in certain areas
(as was to be expected) but with the
adequate result.
Long term relationships
CIOPORA and Expoflores worked
together on solving some important
issues regarding Intellectual Property
rights. CIOPORA provided
the EU Commission with all the
necessary background information
and we did the same with
the Ecuadorian Government. The
agreement is expected to come into
force between the third and fourth
quarter of 2016. It will provide
stability to both plant breeders and
growers, strengthening the ties between
them. We must understand
that moving all export products
from Ecuador to the EU from the
SGP+ to the free trade agreement
will motivate exporters and importers
to foster long term commercial
relationships and develop mid and
long term market strategies.
Environmentally friendly
floriculture
The current annual value of Ecuadorian
exports to the EU amounts
for 1.8 billion USD, with main
products being shrimp, bananas
and tuna. It is expected that the
total growth will reach a 7% yearly
increase. The current devaluation
of Euro will probably slow down
this growth rate. However, we see a
recovery in the EU economy that is
expected to boost the value of Euro
in the global market and hence positively
influence our exports to the
European market. The flower industry
should benefit from the free trade
agreement at a yearly growth rate of
2%. There are a number of steps that
must be undertaken in the market to
facilitate this growth. Among others,
they include an increased consumption
of cut flowers per capita as well
as promotion of sustainable and
responsible floriculture.
Rapidly changing market
We believe that the market is changing
rapidly nowadays, and we must
adapt to consumers’ needs. Ecuador
has the longitude and the altitude
to produce great flowers, especially
roses, but first and foremost, the
Ecuadorian growers have just the
right attitude towards the market. It
is our association’s belief that, after
all pieces fall in their places, our
industry will stand strong keeping
its focus on the market. Expoflores
is working with all its members to
improve the cost efficiency of their
businesses, with the major advances
being made already now.
As a final message to the breeder’s
community, on behalf of Expoflores
I would like to thank you all for the
continuous support and partnership
that we have managed to establish
over the past 30 years. I am sure
we shall continue strong and firm.
Thank you for believing in Ecuador,
its quality, capabilities and for trusting
in our people. |||
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 35
IP in the World
The Mexican
Federal Law for
Plant Varieties
(1996), which
establishes
the national
regime of Plant
Breeder’s Rights
(PBR), is a
result of a long
analysis and
consultation
process which
had been
initiated in 1992.
by Enriqueta
Molina Macías
Plant Variety Protection
System in Mexico
The Law corresponds to the
standards of the 1978 Act of
UPOV, which Mexico acceded
to in 1997. It currently provides
the 18-year protection term for
vines, perennial and semi-perennial
species and a 15-year term for other
species and guarantees the protection
for all genera and species of
plants. The Ministry of Agriculture
through SNICS is in charge of the
national PBR application process.
Procedure
In order to register a PBR, the application
in the official format along
with a technical report, fee payment
receipt and an accreditation of the
legal representative should be filed
to SNICS. The technical report
should be completed in accordance
with the UPOV Test Guidelines, except
for some crops with a national
protocol due to their diversity. In
response to the national programs
and commercial potential of new
species, Mexico has developed national
guidelines, e.g. for Jatropha 1 ;
In absence of a crop guideline for
the candidate variety, the applicant
should describe the characteristics
following the UPOV TG/1/3 2 . The
national reference for this process is
included in regulation NOM-001-
SAG/FITO-2013 3 . All documents
should be submitted in Spanish
or accompanied by their official
translation. Upon filing, SNICS
analyzes the application and carries
out the denomination check via the
UPOV database and the National
list of Plant Varieties (CNVV).
After a preliminary exam of novelty
and the denomination, SNICS
authorizes the issue of the provisional
title. This procedure takes
approximately 120 days to complete
(usually 30 days or less).
Pictured left to right are Aquiles Carballo Carballo, Dr. José Luís
Figuerosa Velasco, Ing. Enriqueta Molina Macías and Peter Button.
Rose grower in Mexico.
Further review
The further review is performed by
the Committee of Plant Varieties
(CCVV), whose objective is to
verify the fulfillment of novelty and
DUS requirements by the plant
variety. The proposed denomination
is also reviewed and approved.
The Committee is assisted by the
Technical Support Groups (TSG)
on each genera and species. These
groups facilitate the analysis of
technical, morphological, physiological,
biochemical, molecular
and statistical aspects. TSGs are
the heart of the System. Founded
in 1995 during the preparatory
stage to the Law promulgation,
they consist of representatives of
governmental and non-governmental
bodies, as well as universities,
research centers, producer and
grower associations. The TSGs specialize
in agricultural, ornamentals
and forest, vegetable, fruit crops, as
well as in molecular and statistical
techniques. They have enabled
the creation and strengthening of
national capacities in plant variety
description and DUS testing.
36 www.FloraCulture.eu | CIOPORA Chronicle June 2015
At a seminar in Mexico keynote speaker and CIOPORA Secretary
General Dr. Edgar Krieger provided insights in IP matters.
Identification
The identification of the variety
and its compliance with DUS
requirements by TSGs present
the focal point of the plant variety
assessment. The results of their
considerations are presented to
the CCVV, which reviews all the
information integrated by SNICS,
including novelty, denomination
and DUS. The title is issued once
the Committee confirms the fulfillment
of all the requirements.
The entire application process
takes from six to eight months.
To present moment, Mexico had
granted 1.325 titles, including 425
titles to Mexican breeders 4 . Once
the title is granted, the breeder is
asked to provide a variety sample
for the reference collections.
Enforcement
Over the past three years, SNICS
has launched two information
campaigns to promote Plant
Variety Protection with the goal
to enhance the farmer's access to
the latest technologies and the
varieties with improved characteristics
5 . The efforts undertaken
to build the awareness towards
PVR among the research centers,
universities, industry associations,
governmental authorities and agricultural
sector resulted in significant
improvements in perception
and understanding of PVR and
their role, especially within the
ornamental sector. Today growers
are convinced of the relevance of
the Plant Breeder’s Rights for the
establishment of the productive
partnerships within the green
sector. It is very important that
breeders as well see themselves as
partners of growers, with SNICS
as liaison to promote and strength
collaboration and benefits to the
agricultural sector in general.
In regard to of inspections and
control, SNICS has developed
58 verification procedures, which
have strengthened enforcement,
and have allowed to create legal
precedents in the specialized
court on the field of Intellectual
Property (SEPI). The successful
PVR awareness campaigns and
the creation of new high-tech
laboratories for in vitro propagation,
such as the Technological
Development Center of Tezoyuca,
allowed Mexico to position itself
as an attractive hub for effective
collaboration between breeders
and growers and as a producer of
high-quality propagation material
for national and US markets.
Law amendment
Today, almost 20 years after the
Federal Law for Plant Varieties
came into force, it is important to
continuously update its provisions
in accordance with the standards
of the international legal practice
and the rapid technological
development of the past decades.
The main national goal is not
the accession to the 1991 Act of
UPOV, but the strengthening of
the currently established PVR
regime.
A new PVR Law draft was presented
to the Congress in 2012,
but the approval was unfortunately
blocked by some interest groups
with varying opinions on issues of
biodiversity, GMOs (regulated by
the Biosafety Law of 2005) and
IP, despite the fact that Mexico
has an extensive legal mechanism
in place to protect agrobiodiversity
and the public interests (Seed Law,
2007, and the National System
of Plant Genetic Resources (SIN-
AREFI)).
Updating the PVR regulations
is essential to providing guarantees
for the continuous access
to better technologies and to
creating a favorable environment
for production, trade and export,
especially in ornamental sector.
It is an important precondition
for maintaining the competitiveness
of the country, as well as
for avoiding the creation of an
unbridgeable gap in technological
development of the sector.
Concluding remarks
In Latin America, Mexico has
assumed a leading position in
development of the international
guidelines for variety description
and plant variety registration,
including the DUS testing for the
EU (CPVO) and the building of
its technical, administrative and
legal capacities. Today the process
of PVP title registration takes as
little as 6 to 8 months. A number
of important advances were also
made in raising awareness towards
PVR and their enforcement. The
national plant breeding capacities
were promoted and significantly
enhanced. Under the modern
circumstances the amendment of
the PVR Law remains the most
urgent task in order to ensure
Mexico's status as a center for
technological development and
transfer in the Latin America, to
expand and accelerate its plant
production and exports. In my
opinion, CIOPORA plays a key
role as Mexico’s partner in this
important task. |||
1 http://snics.sagarpa.gob.mx/dov/
Paginas/Guias_Tecnicas.aspx
2 General Introduction to the
Examination of Distinctness,
Uniformity and Stability and the
Development of Harmonized
Descriptions of New Varieties
of Plants
3 NORMA Oficial Mexicana
NOM-001-SAG/FITO-2013,
Por la que se establecen los
criterios, procedimientos
y especificaciones para la
elaboración de guías para la
descripción varietal y reglas
para determinar la calidad de las
semillas para siembra. http://
www.sagarpa.gob.mx
4 All the information regarding
applications and titles may be
consulted in the Official Federal
Gazette, http://snics.sagarpa.
gob.mx/Documents/2015/
Gaceta.pdf and through the
SNICS data base SIVAVE
(Plant Variety System): http://
www.snics.gob.mx/sivave/
5 http://snics.gob.mx/
proteccionvarietal.html ; http://
snics.gob.mx/snics/pirateria.
html
About the author
Enriqueta Molina Macías is responsible for the creation of the Mexican
System on Plant Variety Protection, SNICS General Director (National
Service of Seed Inspection and Certification) “Servicio Nacional de
Inspección y Certificación de Semillas”) from 2003 to 2015 and Mexican
representative of Mexico in UPOV since 1996. Author’s comments are
strictly personal and do not reflect the opinion of any institution.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 37
Biodiversity
Plant breeding,
whether on the
basis of traditional
or more advanced
techniques, is
essentially the art
of combining the
genetic composition
of existing plant
material into an
improved progeny.
New plant varieties
with higher yields,
altered flower
architecture or
drought resistance
are examples of
how plant breeding
enhances biological
diversity. To achieve
this goal, the lengthy
process of research
and development,
which is inherent
to all plant
breeding activities,
necessarily
presupposes the use
of existing biological
resources.
by Philippe de Jong
Are you being
duly diligent??
There are various types of
genetic resources a breeder
can use to create genetic
variation, including: using his own
breeding material, using material
from gene banks, building on the
material of commercially available
plant varieties, or using material
collected in the wild during bioprospecting
missions.
The international
ABS framework
In 1992, a specific convention,
called the Convention on Biological
Diversity (CBD), was adopted to
avoid misappropriation of such biological
resources. The CBD’s main
objectives were to ensure that the
planet’s genetic resources remained
sufficiently conserved and used in
a sustainable manner, and that the
benefits arising from their utilisation
would be fairly and equitably
shared with the countries providing
those resources.
Following discussions on how the
CBD could be given more power,
in 2004, the CBD’s members (or
parties) were instructed to elaborate
and negotiate an international
regime to advance the achievement
of the CBD’s third objective (concerning
access to genetic resources
and benefit-sharing). That process
eventually led to the adoption of
the Nagoya Protocol to the CBD
on 30 October, 2010.
The Nagoya Protocol sets out a
general framework on “access and
benefit-sharing” (ABS) of genetic
resources. It provides that benefits
arising from the utilisation of
genetic resources should be shared
“in a fair and equitable way with
the party providing such resources
that is the country of origin of such
resources...”.
The specific conditions under
which benefits are shared for spe-
Formal and
substantive duty
The precise format of the formal
obligation still needs to be defined
in the implementing legislation, but
it will, in any event, entail the filing
of a declaration form on two occacific
transactions are to be set out
in Mutually Agreed Terms (MAT),
i.e. private law contracts between
the provider and the user of the
genetic resources.
It also provides that the country
of origin exercises sovereignty over
its genetic resources and thus has
the right to require that its genetic
resources are only accessed with its
Prior Informed Consent (PIC).
The Protocol also establishes a
so-called “ABS Clearing-House”.
Under this mechanism, which
is a feature on the CBD website,
all information on ABS should
be shared, including information
from each party to the Nagoya
Protocol on the applicable rules and
formalities for PIC and MAT. Next
to these rules on ABS, the Nagoya
Protocol also sets out the obligations
for Parties to take appropriate
measures to ensure compliance
with and monitoring of those rules.
The European scene:
under construction
In Europe, the implementation
of the ABS rules has been left to
the Member States. The European
Union, however, has adopted a
specific Regulation to implement
the compliance pillar of the Nagoya
Protocol, - Regulation 511/2014/
EU of 16 April, 2014, “on compliance
measures for users from the
Nagoya Protocol on Access to
Genetic Resources and the Fair
and Equitable Sharing of Benefits
Arising from their Utilization in
the Union” (the NPC Regulation).
The NPC Regulation (partially)
entered into force on 12 October,
2014, which also happens to be the
date of the entry into force of the
Nagoya Protocol. The rest, including
its most important provisions
on the formal and substantive due
diligence obligations, which are set
out further below, will enter into
force one year later, on 12 October,
2015.
It would by far exceed the boundaries
of this short article to discuss
the scope of the NPC Regulation
in detail, particularly since quite a
number of elements remain unclear
and await further implementation
and/or clarification by the European
Commission.
In January 2015, the Commission
organised a stakeholder meeting
and it is currently developing
implementing rules and guidance
documents based on the results of
that meeting. All this should be
ready by October 2015.
In a nutshell, however, the NPC
Regulation is said to apply to
“genetic resources over which States
exercise sovereign rights ... that are
accessed after [12 October 2014]”.
EU law-makers have taken the
view that such sovereign rights
are not necessarily exercised just
with respect to the raw material
in the form received, but can also
be exercised in respect of all types
of genetic resources, including commercial
varieties. It will be up to
breeder to determine whether sovereign
rights are exercised regarding
the biological material he wants to
use in his breeding program. If they
are and if the genetic resources were
accessed after 12 October 2014,
then the NPC Regulation imposes
both a substantive obligation to
exercise due diligence and a formal
obligation to declare that such due
diligence has been exercised.
38 www.FloraCulture.eu | CIOPORA Chronicle June 2015
According to the European Commission,
the same applies to genetic
resources accessed in a country that
is a Party to the Nagoya Protocol,
but that has not posted the applicable
rules on the Clearing House
website. However, in the event of a
compliance check by the competent
national authorities, the European
Commission takes the view that
the breeder would still carry the
burden of proving that the filing of
a due diligence declaration was not
required. It is therefore important
to keep detailed records of what has
been accessed, where and when.
>>>
Photo credits: Altius.
About the author
Philippe de Jong is a lawyer in the Intellectual
Property and Life Sciences department at the Altius
law firm in Brussels, Belgium. He has been a member
of the Brussels bar since 2002 and specialises in
patents, Plant Variety Rights and parallel import
litigation. He also advises clients on the regulatory
framework for medicinal products and plants,
including GMOs. He worked as a consultant for
the CPVO and has represented a large number
of innovating companies before the Belgian and
European courts. The author represents the two
consortia of plant breeders in the proceedings
before the General Court of the European Union,
referred to in this article.
sions, the so-called “checkpoints”.
The first occasion is upon the
receipt of research funding (which
includes both public and private
funding); the second occasion is “at
the stage of final development of a
product”, which can, depending on
the situation, either be at the time
of filing for marketing authorisation,
the placing on the market of
the product developed from the
utilisation of genetic resources, or
another event.
According to the substantive
obligation, all “users” of “genetic
resources” should exercise due
diligence that the genetic resources
they “utilize” have been “accessed”
in accordance with the applicable
national ABS legislation and that
PIC and MAT agreements have
been concluded. All the terms between
quotation marks have been
separately defined in the NPC
Regulation.
Only for resources
accessed in a party to
Nagoya Protocol
To begin with, the term “access”
is defined as “the acquisition of
genetic resources … in a Party to
the Nagoya Protocol”. In other
words, if the material is accessed
in a country that is not a Party
to that protocol, the obligation
of due diligence does not apply.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 39
Zooming in on IP
Only for EU plant
breeding
Next, a “user” is defined as “a
natural or legal person that utilizes
genetic resource...”. In turn, the
term “utilization” is defined as “to
conduct research and development
on the genetic and/or biochemical
composition of genetic resources,
including through the application
of biotechnology...”. According
to an informal clarification from
the European Commission, the
NPC Regulation will only apply to
utilisation of genetic resources in the
EU. In other words, if the research
and/or development take place
outside the EU, the Regulation’s due
diligence obligations will not apply.
However, “genetic resources” are
broadly defined as “genetic material
of actual or potential value”,
whereas the term “genetic material”
means “any material of plant,
animal, microbial or other origin
containing functional units of heredity”.
It is immediately clear from
these definitions that plant breeders
are users within the meaning of the
Regulation and that plant breeding
is a form of utilisation of genetic
resources.
A lot of information
Unless this “user” manages to obtain
an “internationally-recognised
certificate of compliance”, which is a
type of permit that may be provided
by the country of origin in case PIC
and MAT have been concluded, the
NPC Regulation imposes upon “users
of genetic resources” a number of
cumulative obligations to be met for
the user to be considered as having
exercised due diligence.
The “user”, amongst other things,
has the obligation to seek, keep and
“transfer to subsequent users”, information
and relevant documents
on (i) the date and place of access of
genetic resources, (ii) the description
of the genetic resources utilized, (iii)
the “source” from which the genetic
resources were directly obtained “as
well as subsequent users of genetic
resources”, (iv) the presence or absence
of rights and obligations relating
to ABS, (v) access permits, and
(vi) MAT. Users have to keep all of
this information “for 20 years after
the end of the period of utilization”.
Breeders´ exemption
Taking into account that, according
to the European Commission, the
term “genetic resources” also covers
commercially available material of
protected varieties for further breeding
purposes, it is immediately clear
that, with respect to varieties protected
by a plant variety certificate,
the European due diligence rules
create a conflict with the breeders'
exemption under the Plant Variety
Rights regime. This is because the
due diligence obligation effectively
abolishes the principle of free access
to germplasm. On the one hand, it
forces the breeder of the new variety
to seek all the required information
and documents listed in the NPC
Regulation from the breeder who
put the variety on the market and
thereby to disclose his intention to
use material of the initial variety to
the owner of that variety. On the
other hand, it forces the owner of
the protected variety to disclose his
pedigree to the new breeder (which
is normally confidential and which,
after a few years of application of
the Nagoya Protocol, may include
hundreds of different genetic
resources). The NPC Regulation
thus creates a legal and commercial
relationship between plant breeders
that previously did not exist.
Ironically, without this relationship,
neither breeder can comply with
the NPC Regulation’s due diligence
requirements…
Severe sanctions
To make things worse, according
to European law-makers, whenever
“the information in their possession
is insufficient or uncertainties
about the legality of access and
utilization persist”, plant breeders
should still try to obtain an access
permit and/or establish MAT. If
this is not possible, which will
hardly ever be the case, they should
simply “discontinue utilization”!
If the user continues, the genetic
resource in question (and, in view of
the “knock-on” effect created by the
NPC Regulation, all plant material
building on that genetic resource)
will be considered as having been
illegally accessed. In that case, the
competent national authorities will
have recourse to a wide variety of
remedies against the non-complying
user.
What the future
will bring
In this context, it is clear that plant
breeders should keep as detailed
records as possible on the origin of
the resources they use in their plant
breeding activities after 12 October,
2014. The implementing rules
that will be adopted later this year,
as well as the promised guidance
document should provide some
further clarification for breeders on
how they can align themselves with
the NPC Regulation.
However, it is clear that many
uncertainties will remain. This is
why on 28 July, 2014, two consortia
of German and Dutch plant breeders
launched an annulment action
against the NPC Regulation. The
cases 1 are currently pending before
the EU General Court. A date for a
decision has not yet been set. |||
1 Cases T-559/14 and T-560/14.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 41
by Richard Petri
Opinion
Thoughts about genetic resources
I am just riding
on a horse in
Ethiopia from
the vast Dodola
plains through
an ancient forest
with magnificent
and huge Hagenia,
Podocarpus and
Juniperus trees.
Soon I will reach
the Afro-alpine
zone with giant
lobelias, pillows
of helichrysums
and colourful
poker lilies. While
I am reaching the
heather zone I
see huge tracts of
burned heather as
far as my eyes can
see, which have
been set into fire from local farmers to enhance regrowth of
fresh shoots for their livestock. Of course it is illegal but it
seems unfair to me to judge as Westerner demanding unspoilt
nature while people are simply battling for survival.
These fires, however, do not only harm plants and animals.
I was planning to meet Biniyam Admassu, an advisor of
the Frankfurt Zoological Society who was helping me
preparing trips in the Ethiopian conservation areas. Just a
few days before my arrival he lost his life in the flames trying
to protect the Bale National Park, home to the last and
endemic Ethiopian wolves. What a tragic end for a young
and exceptional conservation champion. But realistically, it
seems unavoidable that this globally unique eco-zone with
all its species and genetic diversity will disappear not being
considered for any commercial use of its existing genomes.
At the same time, vibrant and fierce discussions are ongoing in
our horticultural industry on how to deal with benefit sharing
models to avoid genetic exploitation of biodiverse hotspots. I am
working for Selecta, a worldwide known breeder of vegetative
ornamental plants. Yes, I know little about breeding, but I
believe that limitations and excessive control have never inspired
research and development, but rather refrained people from
thriving innovations. Whether a global contract can balance the
interests of the holders of genetic resources and those who have
to technologize to use them – I really doubt.
I reach the first hut at 3,450m., tired from a 5-hour climb
and thus absolutely in need of a good bottle of beer or
maybe two. Ten years ago the breweries of Ethiopia were
mainly in the hands of the government. Now the big global
beer giants have taken over some of them. Of course, new,
fresh brands have been launched since then. For example
Walia beer, which had just a year ago still been unknown to
me. Now you can get it everywhere. Even in that hut where
it has to be carried up by horses from the next store 1.000m
below. Holding the first bottle in my hand, I think about the
name “Walia”, the animal logo and its bottle design. Walia
is a unique and endemic capricorn species, only found with
500 individuals up in the Simien mountains of Northern
Ethiopia. The Ethiopian Wildlife Conservation Authority
also keeps the Walia in their logo. So is this an intellectual
property infringement from the brewer company? And: How
will the species benefit from its commercialization?
In the flower industry we all deal with mostly generic products.
After years of seedlings and trials we try to protect our
breeding achievements by means of Plant Variety Protection,
but competition can use the new variety for its own breeding
activities to create new commercial varieties. This is possible
due to the breeders´ exemption. In the long run, that levels out
any competitive advantage, the minimum distances are getting
smaller and smaller. Indeed the trade and the consumer see
less and less differentiation in our varieties. Thus, they will
play the game of lowering prices year by year.
Since a recent decision from the Enlarged Board of Appeal of
the European Patent Office it is now possible, under certain
circumstances, to obtain patents on plants. This decision
follows years of discussions and concerns whether the breeders´
exemption will have to be dumped thereafter.
Let’s have a look at one of our breeding breakthroughs:
the double flowering Calibrachoa. This plant is clearly
distinguishable, it has an improved root system, is easier
to handle for growers (with less chemical input) and
continuously flowers all throughout the season.
I do not see why years of effort and investment into research
should not pay off like it would in other industries. Try to
copy a brand from Nestlé or imitate a technology from Apple
and you will see.
I again have a look over the vast plains from Dodola, empty
and dusty at the end of the dry season. What would happen
if the people there could harvest their crop for a second time,
maybe with a new breeding of drought resistant crop?
Richard Petri is Selecta Klemm’s head of marketing and product management. An experienced grower and
horticulture engineer, Richard has been working with Selecta for nine years now. Richard started his career at
Selecta in 2006 when he was appointed as general manager of the company’s production site in Uganda.
In 2010, he returned to Germany to assume his current position. r.petri@selectaklemm.de
CIOPORA Chronicle June 2015 | www.FloraCultureInternational.com 43
IP in the World
In recent years,
the protection of
Intellectual Property
(IP) rights in the
People’s Republic
of China has
become one of the
priority business
issues for more and
more horticultural
companies.
The promising PVP
system and PBR law
enforcement in China
In September 2011, the Chinese
Ministry of Agriculture (MOA)
introduced a new Bureau for
Seed Administration to integrate
PVP and VCU (Variety Registration)
for agricultural crops and
plants. By November 2012, 10.000
PBR applications were filed at
MOA.
by Dr. Shujun Yu
Upgrade
As of April 2013, the State Forestry
Administration in charge of forest
trees and woody ornamentals (SFA)
upgraded the list of protected
varieties in China to 120 genera
and species. By the end of 2014,
MOA received an annual average
of 1.650 PBR applications. Further
developments are planned for 2015,
including the establishment of the
Strategic Ally China Guangdong
Association for Advancement of Industrial
Technology Innovation for
Ornamental Plants (GAITOP) and
opening of the first Chinese auction
for landscape & garden plants.
In addition, a review of the Seed
Law is planned to take place in
2015. The prognosis is that the law
will incorporate some provisions of
the 1991 Act of UPOV.
PBR Enforcement
In order to enforce a PBR in China,
it should be first confirmed that the
allegedly infringed plant variety is
indeed under protection in China.
Additionally, the variety must be
identified. Due to the lack of local
comprehensive DNA database, this
procedure might become lengthy
and costly. Alternatively, the
material of protected variety can be
imported from e.g. the Netherlands
to China via Chinese embassy in
Amsterdam, who will serve as notary
for the procedure. The Chinese
court will then appoint a DNA
fingerprint analysis of the plant
variety in question, which will be
carried out locally. Chinese courts
also accept DNA fingerprints of
the involved variety directly from
foreign authorities as evidence on
the case.
Choosing a competent court for a
PBR enforcement case is vital for
the case. For instance, in contrast
to courts in Shanghai or Yunnan,
the courts in Jiangsu have a lot of
experience with PBR cases.
The estimate cost of a court case
on PBR infringement, including
the collection of evidences and the
variety identification, amounts for
100,000 RMB (approx. 15.000
EUR). However, depending on
quantity of illegally propagated
plants, the return on investment
on such a case can be over 200.000
RMB. |||
About the author
Dr. Shujun Yu is an IP and corporate
law attorney at Beijing Hengda
AgForest PBR Attorneys Co., Ltd..
44 www.FloraCulture.eu | CIOPORA Chronicle June 2015
AGM
More than 100
plant breeders
and intellectual
property experts
gathered in
Hamburg for the
54 th Annual General
Meeting (AGM).
Defining and refining
the needs of plant breeders
by Brittany Posey
Each year, AGM provides
a platform for innovative
breeders from the ornamental
and fruit sectors, as well as
Intellectual Property (IP) experts,
to discuss the current system of
IP protection for plant innovation
and ultimately design the blueprint
for CIOPORA’s position on IP for
plants. AGM 2015 (April 27-30)
was no exception, and CIOPORA
members voted to approve the IP
Position Paper on General Plant
Breeders´ Rights (PBR) Matters.
While general, this paper tackles a
number of vital pieces of the PBR
puzzle including the application
process, PBR enforcement and
duration and cost of protection,
amongst other items (To learn
more, read Dr. Edgar Krieger’s
article on page 21).
Approval
During AGM 2015, participants
also dug deeper into the goals
of CIOPORA and helped define
ways in which the organization
can strengthen its support for
Plant Breeders worldwide. AGM
participants unanimously approved
a strategy proposal which recommends
that CIOPORA broadens its
focus toward Patents and Biodiversity,
increases educational activities
for members and provides assistance
in enforcement activities of groups
of members.
CIOPORA also received approval
during the event for the decision
making process in technical matters.
As part of this new structure, Head
Technical Experts shall be
appointed to help gain deeper insight
into the discussions of all technical
matters related to CIOPORA in
all bodies where CIOPORA is party
or observer. This process will help
the flow of information on topics
important to CIOPORA members.
Networking at
its sweetest
While hours of thoughtful debate
between lawyers and breeders kept
everyone on their toes, the week was
also sprinkled with lively networking
events and tours. On Monday evening,
CIOPORA members gathered
to kick off the event at LokalGold,
where they networked on (literally)
the Binnenalster, a scenic manmade
lake in the heart of Hamburg city.
On Tuesday, participants dined, and
took in a view of the river Elbe, at
Hamburg’s historic Hotel Süllberg.
On the final day of AGM, participants
got hands-on with specialized
business excursion tours within
Hamburg and the surrounding
areas. Those with interests in the ornamental
industry visited the brand
new concept store of Blume2000, a
leading German floral retailer, followed
by tours of Rosen Tantau as
well as Hachmann Rhododendron
Nursery. Fruit excursion participants
visited the Esteburg Center of
Fruit Production in Jork, Germany,
where they heard from researchers
and fruit breeders on current issues
in breeding and new varieties. The
fruit excursion also included outings
to the organic fruit farm Rolker
Ökofrucht GmbH and a tour of apple
and cherry orchards at the Fruit
Research Center Esteburg.
CIOPORA would like to thank all
of those who traveled to Hamburg
for making AGM 2015 a success.
We hope to see you all next April for
AGM 2016 in Istanbul, Turkey. |||
About the author
Brittany Posey is Director of
PR & Communications, CIOPORA.
CIOPORA Chronicle June 2015 | www.FloraCultureInternational.com 45
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46 www.FloraCulture.eu | CIOPORA Chronicle June 2015
Securing another piece
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CIOPORA’S FUTURE
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Zooming in on IP
Law and practice
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JUNE 2015
The CIOPORA
Chronicle is a
special edition
of CIOPORA
and the monthly
business magazine
on worldwide
floriculture FloraCulture International. All
rights reserved © 2015. No portion of editorial
may be reproduced in any form without written
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Editor-in-chief: Ron van der Ploeg
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Editors: Anna Kaehne and Brittany Posey
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Contributing writers: Ersin Dereligil, Bruno Etavard, Kees
van Ettekoven, Krista Hill, Tracey Irani, Robert Jondle, Philippe
de Jong, Anna Kaehne, Bart Kiewiet, Jaap Kras, Edgar Krieger,
Alejandro Martinez, Andrea Mansuino, Yasim Metin, Enriqueta
Molina, Aydin Mutlu, Tjeerd Overdijk, Anthony Parker, Richard
Petri, Brittany Posey, Juriy Rogovskiy, Fleur Tuinzing-Westerhuis,
Dr. Shujun Yu.
Photography: FloraCulture International and CIOPORA
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Destek Patent 30 www.destekpatent.com
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Rosen Tantau 40 www.rosen-tantau.com
Royalty Administration International 47 www.rai-worldwide.com
Selecta Klemm GmbH & Co. KG 43 www.slectaworld.com
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CIOPORA Chronicle June 2015 | www.FloraCulture.eu 47