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Best legal protection
– by Christoph Herrlinger
From 1952 to 2005, harvests of winter wheat quadrupled in Germany, 40 % of it thanks to innovative plant breeding. The same holds true for other types of grain. In developing countries, the wheat harvests also grew by 400 % from 1950 to 2004. This phenomenon became known as the Green Revolution, and Norman Borlaug received the Nobel Peace Prize for his leadership in this area.
Innovative plant varieties can make a big difference, but they are not easy to come by. Even with modern methods, it can take some ten years to develop a new plant variety – and cost at least three million euros in Europe. Plant breeders invest some 16 % of their revenue in the development of new plant varieties, a far greater share of R&D than required in, say, the automotive or pharmaceuticals industry.
The seeds themselves are the production plants for future generations of seeds. Once the seeds of a new, productive plant variety are in circulation, they easily pass from one hand to another – to the benefit of the general public. The inventor on the other hand may get nothing and thus be unable to go on inventing new plant varieties. Intellectual property rights are therefore important, especially to plant breeders.
Intellectual property in plant breeding
Intellectual property rights occur in a number of ways, including
– trade secrets,
– patents and
– plant variety rights.
Patents, brands and plant variety rights affect everyone. The benefit is that rights’ holders can make their knowledge broadly available, but no one can use an invention without compensating the holder. Property rights therefore generally foster innovation. As early as the 1930s people knew that patents weren’t the ideal way to protect plant varieties. Often the relevant criteria, such as those concerning replication of results, were lacking. Also the process of producing new plant varieties – crossbreeding and selection to increase yield – may be difficult, but is often not innovative as such.
Plant variety protection
The UPOV Convention provides the ideal legal protection for plant varieties. To receive protection, a variety must be
– stable and
These DUS criteria make it easy to review new varieties. Even small plant breeders who could not afford proper research into property rights and applications can register new varieties in this manner. This protection is based on “phenotypes” – the appearance of each variety. Plant breeders and farmers can immediately tell whether a variety is protected.
The DUS criteria and the novelty requirement also mean that traditional varieties cannot be protected. Farmers can therefore choose between free, traditional varieties and protected ones.
UPOV 1991 does provide for a few exceptions, however. Protected material can, for example, be used in subsistence farming so the poor can feed themselves. In addition, UPOV Member States can permit farmers to use on their own farms the harvest of a protected variety which they have obtained on their own farm for propagating purposes, provided that the breeder’s interests are protected, e.g. by payment of an adequate remuneration. In many cases, small farmers are exempted from this remuneration.
The main characteristic of the protection for plant varieties is the so-called “breeder’s exemption”. It stipulates that everyone can freely use protected varieties to come up with new varieties, which can then be freely marketed. What is protected is not the genes in protected varieties, but rather their unique combination expressed as a phenotype. This combination is protected, but the breeder cannot prohibit others from recombining the genetic building blocks.
After all, the genes do not belong to any individual breeder, just as colours are not the property of any one painter. Both of these professions justifiably protect their work, but both also have to accept that others can come up with innovations based on the same colours or genetic building blocks respectively.
The breeder’s exemption is linked to the breeding process. Everyone who crossbreeds and selects plants can claim this exemption. “Breeding exemption” would thus be a more appropriate name.
In the protection of varieties, the concept of essentially derived varieties prevents the breeder’s exemption from being abused; varieties that have been essentially derived from a protected initial variety, i.e. which have been only slightly changed and are in their essential characteristics still conform to the initial variety, are still under the scope of protection of the initial variety. The breeder of the protected initial variety has to give consent for marketing. This process promotes progress in breeding and the diversity of varieties; farmers are among the biggest beneficiaries as they can pick and choose from a wide range of providers and products.
Europe’s Biopatent Directive
Patent law has a complementary function in plant breeding. Varieties can only be patented in the USA. Patents are important, however:
– for the protection of innovations before variety development and
– for isolated genes put into genetic environments in which they do not naturally occur.
The EU’s Biopatent Directive did not change the law, but rather cleared up current practice –which does not always work well. For instance, the interpretation of the term “essentially biological process for the production of new plant varieties” – which cannot be patented – is not yet clarified. The European Patent Office is currently reviewing this issue in the “broccoli case”. The scope of patents on direct products resulting from a protected production process is also not yet clear; it has to be clarified whether one can still speak of a “direct” process product after several reproductions.
The interface between patents and variety protection is also problematic. Since the so-called “Novartis Ruling”, a patent for a plant belonging to a variety can be granted if the invention is not limited to this one variety. As a result, property rights can potentially overlap.
In principle, patent law does not have any equivalent to the breeder’s exception and is therefore more restrictive than plant variety protection. In other words, plants that have both patent and variety protection can no longer be used for breeding purposes. In effect, the breeder’s exemption is thereby made null and void. However, the patent acts of Germany and France do allow patented biological material to be used at least for breeding purposes. Breeders can continue their work, though they do have to ask patent holders for permission to market new varieties with the patented aspect.
Patent law should not undermine the fundamentals of plant variety protection. Plant variety protection is crucial for the expansion of plant breeding tailored to local conditions in developing countries and therefore an important aspect to the challenge of feeding the world.