2013 CIOPORA Chronicle

• The free use of protected plant
material for further breeding is
one component
• The limited commercialisation
of the new breeding result is the
other one.
The free use of protected plant
material for further breeding is the
component of the breeders´ exemption
that has been kept unchanged
since the beginning of the UPOV
system.
What has been changed in the
course of time is the limitation
of the commercialisation of the
breeding result. In the UPOV 1961
Act and 1978 Act (Article 5.3) the
breeders´ exemption was limited
only when the repeated use of the
new variety is necessary for the
commercial production of another
variety. In comparison, Article 15
(1) (iii) in combination with Article
14 (5) of the UPOV 1991 Act was
meant to limit the breeders´ exemption
to a greater extent - at least
on paper - by prohibiting the free
commercialisation of three groups
of varieties:
(i)
varieties that are essentially
derived from the protected
variety (where the protected
variety is not itself an essentially
derived variety),
(ii) varieties that are not clearly
distinguishable from the
protected variety and
(iii) varieties whose production
requires the repeated use of the
protected variety.
From a systematical point of view
the reference in Article 15 (1) (iii)
to the varieties listed in Article 14
(5) (ii) and (iii) is incorrect: Only
varieties that are essentially derived
from the protected variety are
necessarily the result of breeding
with the protected variety. Varieties
that are not clearly distinguishable
from the protected variety can also
be developed by using varieties
other than the protected one and
varieties whose production requires
the repeated use of the protected variety
are usually the result of sexual
reproduction of plants, but not of
breeding work. The main reason for
this systematical error is obviously
that the UPOV on one hand wanted
to maintain the “traditional” possibility
to commercialise varieties
resulting from breeding with a protected
variety, while on the other
hand it wanted to further limit the
breeders´ exemption by prohibiting
the commercialisation of two more
types of varieties.
In order to adapt the PBR system to
the current environment in modern
breeding and to make it suitable
for the challenges in the future and
in order to have a systematically
correct structure, the breeders´
exemption should be re-structured
and fine-tuned.
For the sake of fostering innovation,
the free use of protected plant material
for further breeding should,
in my opinion, be kept, provided
that the commercialisation of the
breeding results does not weaken
the exclusive right in the protected
innovation. The change in the
UPOV system would therefore
relate to the commercialisation part
of the breeders exemption. It simply
should be deleted, so that the future
breeders´ exemption would read:
“The breeder’s right shall not extend
to acts done for the purpose of
breeding other varieties.”
This means that the commercialisation
of any variety, which falls
under the scope of a protected variety,
shall require the authorisation
of the title holder of the protected
variety. According to what has been
said above, such varieties would be:
• varieties that are not clearly distinguishable
from the protected
variety
• varieties that are essentially derived
from the protected variety
• varieties that reproduce the
groundbreaking feature(s) of the
protected variety
• varieties whose production
requires the repeated use of the
protected variety.
In other words: the future breeders´
exemption should only contain the
free use of protected material for
further breeding, but no commercialisation
anymore. Consequence:
If a new variety, which results from
any kind of breeding (i.e. crossing
and selection, mutating, genetic
modification etc.), falls under the
scope of a protected variety (not
only of the variety that has been
used for breeding the new variety),
it must not be commercialised
without the authorisation of
the title holder of the protected
variety. The concept is similar to
the “breeders´ exemption” in the
new Unitary Patent in the EU or
in the Patent law of Germany and
France. And in fact, this change of
the breeders´ exemption does not
bring a major change to the current
situation (except for groundbreaking
features), because already now
EDVs, varieties not clearly distinguishable
and varieties requiring
repeated use, are blocked at least on
paper, from commercialisation.
In a nutshell
It doesn´t require witchcraft to
strengthen the exclusive right of
the title-holder. We can even keep
the free use of protected varieties
for further breeding in the PBR
system, but we need
• to restore the concept of varieties
that are not clearly distinguishable
from the protected variety, that
is to say that we need to broaden
its meaning by establishing a sufficiently
broad minimum distance
between varieties;
• to clarify the EDV concept and
implement it in a sufficiently
broad way, which allows the
breeder of the Initial Variety to
control mutations and GMO of
his protected variety;
• to install a system that protects
groundbreaking innovations.
So – everything solved – what a
nice Sunday. |||
About the author
Dr Edgar Krieger has extensive experience in the field of Intellectual
Property Protection for plant innovation. He has been executing the
position of Secretary General of CIOPORA since 2004. Previously, Dr
Krieger worked as a lawyer at an international law firm specialising
in IP protection, and particularly in Plant Breeder's Rights, advising
agricultural breeders in several hundred court cases up to the
European Court of Justice. Dr Krieger has completed his doctoral dissertation
on the topic "Farmers' Exemption in Germany" at the Philipp
University of Marburg.
CIOPORA Chronicle April 2013 | www.FloraCultureInternational.com 29