2013 CIOPORA Chronicle

PVR enforcement
Plant breeders’
rights are not an
empty box and
should therefore
not be treated as
one. This article
aims at providing a
riposte to common
misconceptions.
DNA testing (credits: Naktuinbouw).
Belgian discovery rules give
Plant Variety Rights teeth
by Philippe de Jong
Plant breeders spend vast
amounts of money, time
and effort in creating new
varieties. They then usually spend
almost as much money, time and
effort on obtaining plant variety
right certificates from either the
CPVO or national authorities in
different countries around the
world. Yet they are only rarely seen
in court. Admittedly, conducting
litigation and paying lawyers is not
their core business, nor should it
be. But they should not be put off
from going to court by incorrect
perceptions.
Ostrich approach
One of the most common of these
incorrect perceptions is, that convincing
a court that someone else is
infringing their plant variety rights
is as easy as convincing a vegetarian
that meat is good for him, in other
words impossible. This feeling is
not just triggered by the fact that
the products covered by the rights
are living plants and therefore,
by their very nature, difficult to
define or describe. It is furthermore
felt that, since the only place the
claimant can gather evidence from
is his competitor’s highly-secured
greenhouses, proving infringement
cannot be impossible. With that
perception in mind, plant breeders
have already too often preferred
to adopt the ostrich approach
and bury their heads in the sand,
hoping the infringement comes to
nothing, rather than confronting
the alleged infringer. Obviously this
is not what the legislation, that created
plant variety rights, intended.
Genotype and fenotype
In broad terms, if a breeder comes
across plants with characteristics
suspiciously close to those of his
protected variety, he will – to begin
with – normally want to have their
DNA tested to obtain a unique
DNA fingerprint. This can already
provide the breeder with an indication
that the plant is either his
protected variety, or belongs to an
essentially derived variety. If he acts
quickly, the DNA fingerprint may
in some jurisdictions be sufficient
evidence to obtain a preliminary
injunction against the other plant
breeder, based on the presumption
that the genetic similarity is too
high to be coincidental. But that
is, of course, usually not enough.
The current plant variety rights
protection system is based on
phenotypes, so the claimant has to
have the allegedly infringing plant’s
morphological or physiological
characteristics analysed, as only
this type of analysis will allow the
court to grant a permanent injunction.
Finally, the claimant needs to
obtain information about the origin
of the plants and the geographical
scope of their distribution and sales,
if he wants to claim damages for
lost sales and profits.
Discovery procedure
But how can the average plant
breeder gather all this information?
There are essentially two ways.
Either the breeder commissions
his own DNA fingerprinting and
botanical analysis and makes his
30 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013