2016 CIOPORA Guide to Plant Breeders' Rights

Preface
Provided it is protected
L
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me first guide you through the history of patent law. The concept of Intellectual Property (IP) was codified for the
first time in Italy, more precisely by the Venetian Statute of 1474. This statute was the basis for many other attempts
to acknowledge rights on inventions (i.e. England’s Statute of Monopolies, 1624), but the first formal grant of a
patent under a modern system occured under the Patent Act of the United States in 1790. Some 140 years later, the first plant
IP in the world was protected – again in the U.S. – when, in 1930, the American climbing rose variety “New Dawn” was
patented.
by Andrea Mansuino
President, CIOPORA
In 1961, UPOV (the International Union for the Protection of New Varieties of Plants) was established (the same year in
which CIOPORA, the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties,
was founded), with the mission to provide and promote an effective system of plant variety protection and encourage the
development of new varieties of plants, for the benefit of society. Since the creation of UPOV, this mission has led the
association’s member states to create and publish international guidelines for the protection of breeders’ rights, the so called
“UPOV Conventions”, the latest being UPOV 1991.
In 1994, the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) was signed in the
framework of the World Trade Organization (WTO), stating that “Members shall provide for the protection of plant varieties
either by patents or by an effective sui generis system or by any combination thereof”.
Within the last decade, breeders have begun voicing their dissatisfaction with even the most-recent UPOV Convention
(which is 25 years old), noting that it does not adequately cover the needs of the changing industry. In Europe especially, the
option of protecting IP in plants through Patents instead of Plant Breeders’ Rights (PBR) based on UPOV principles is being
taken into higher consideration, thus stimulating various debates on how IP protection in the plant world should be handled.
There is little doubt that, if the main meaning of ‘effective’ in English language is ‘achieving the desired result’, no protection
system in existence today is effective in providing a proper IP environment for breeders, growers and traders to achieve their
goals in terms of protecting innovation and enforcing their legitimate rights.Moreover, it is extremely difficult to find a system
which could be called ‘sui generis’ (meaning ‘of its own kind, in a class by itself’) since almost all countries and regions have
adopted legal IP systems that do not consider the fundamental differences which exist in the plant world.
Most importantly there is no separation between seed propagated plants and vegetatively propagated plants – for example
food crops, feed crops and ornamental crops – which have widely different needs in regards to both agronomic methods and
business scope. History and vague IP protection systems throughout the world considered, the industry today if left with
multiple options for protectiont Plant IP, and the breeders must choose a method.
In the U.S., breeders can protect an asexually propagated plant variety through a Plant Patent, a seed variety through a Plant
Variety Right (PVR), a plant through claims of a Utility Patent, and in some cases such protections can overlap. In the EU,
breeders can protect their new varieties by PBR protection through the CPVO (European Union Office) or by national PBR
laws for their specific country. Recently, plant products such as fruits, seeds and parts of plants are patentable in principle
under the European Patent Convention (EPC) even if they are obtained through essentially biological breeding methods
involving crossing and selection. Other countries around the world offer similar situations, where in many cases varieties and/
or plants can be protected through PBR (UPOV System), Patents or both. In addition, in the plant world, Gene Patents,
Geographical Indications, Trade Marks, Copyrights, Trade Secrets, and Confidental Information, amongst other legalities,
can be used to strengthen the IP portfolio of breeders.
It has been a fundamental question, historically asked during the fights between the American miners unions and mine
owners at the beginning of the 20 th Century – Which side are you on? It seems that even today, in our industry, a lot of people
care more about ideological positions than economic implications and fair business policies.
At CIOPORA we have intense debates about “how to best represent the interests of our members and of our industry”
whenever we are called to take a position. For our association, each discussion is driven by a single mission – to work for
an effective system of protection for plant varieties, in order to stimulate innovation, for the economic development of the
industry and ultimately for the benefit of the society.
Breeders, but also growers and traders, benefit from effective protection. Innovation and progress can only develop if the
outcomes of the intellectual efforts are effectively protected. So, in the end, it all comes down to this: Protect your new
varieties. Consider the many options at your disposal to best protect your innovation. It doesn’t matter if you protect through
PBR, Patent or another IP tool that can strenghten your Intellectual Property. It will be of the greatest benefit to us all......
provided it is protected.
Andrea Mansuino
President of CIOPORA
October 2016 | www.FloraCultureInternational.com 23