Plant Breeders Rights a short introduction 11-11-2014 – Judith de Roos-Blokland

The 350 members united in Plantum are active in: • Plant breeding/selection

• Propagation

• Production of cuttings, seeds

and young plants

• Tissue culture

• Trade in plant materials

Plantum

Agriculture Ornamentals Vegetable seeds Young vegetable plants

Plant Breeders Rights Trademarks Patents

NOT: • EU Marketing Directives - Varieties can only be marketed in EU once registered on Common Catalogue (veg+agr) BUT without IP: by everyone

IP Protection for plants

• US Plant Patent Act (1930) No explicit breeders’ exemption, but the right is

limited to asexual propagation • In France, Germany and Belgium for a short

period varieties protected by patent law • The Netherlands: Kwekersbesluit 1941

• Beginning of first PBR legislation in Europe

• First Treaty on Plant Breeders Rights: UPOV Convention 1961 • Zaaizaad en Plantgoedwet 1967

Origin Plant Variety Protection or Plant Breeders Rights

• Reasons for a specific Intellectual Property Right for plant varieties instead of protection by patents

• Self reproductive material

• Different ways of multiplication/ appearance

• Influence of environment

• Paper examination not sufficient

Origin Plant Variety Protection

• A plant variety can be protected if it is - Distinct (D) - Uniform (U) - Stable (S) - Novel - Suitable denomination

Object of Plant Breeders Rights

International UPOV Convention currently 73 members (green)

• Limited number of species for which protection is possible (max. of 24 )

• Scope of PBR-right is limited to: - production of propagating material for purposes

of trade - selling of propagating material - trading of propagating material

• Protection period of 15 years (extension to 18

years for vines and trees) • Ban on double protection for varieties

UPOV Convention 1978

• Protection needs to be possible for all species (after implementation period)

• Scope of PBR-right:

production and reproduction, conditioning, offering for sale, marketing, exporting, importing or stocking of :

- propagating material

but also:

- harvested material

- essentially derived varieties

UPOV Convention 1991

The breeders right shall not extend to acts concerning any material which has been sold or marketed by the breeder or with his consent in the territory, unless -there is further propagation of the variety -there is export of the material into a country which does not protect varieties of the plant species to which the variety belongs, except if the exported material is for final consumption purposes

Exhaustion

The authorisation of the breeder is required in regard to harvested material obtained through the unauthorised use of propagating material, unless the breeder has had the reasonable opportunity to exercise his right

Harvested material

Requirements: -the variety is predominantly derived from the initial variety or from a variety that is itself predominantly derived from the initial variety -it is clearly distinguisable from the initial variety -except from the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype

Essentially Derived Varieties (EDV’s)

• Limitations to the exclusive right:

- Breeders’ exemption - Acts done privately and non-commercial - Farm saved seed “Within reasonable limits and subject to the

safeguarding of the legitimate interests of the breeder”

• Protection period of 20 years (25 years for vines and trees)

UPOV Convention 1991

• Right is granted by the Community Plant Variety Office (CPVO) in Angers

• One right is effective in all 27 EU Member States

• DUS examination is done for the CPVO

by the entrusted examination offices of the national authorities

• PBR legislation EU: Basic Regulation (EC) 2100/94 Breeders can choose either an EU right or national right(s)

Community Plant Variety Protection

Art. 14 Reg. 2100/94/EC Farmers are authorized to use the product of their harvest for propagating purposes in the field, on their own holding • Only for fodder plants, cereals, potatoes,

oil&fibre plants • Payment of a reasonable remuneration

Art. 59 Zaaizaad en plantgoedwet 2005 • The farmer may use his harvested seed on his

own holding, under the condition that he informs the breeder about this use

before the 15th of May of the year of harvest.

Farmers exemption (Farm Saved Seed)

What is Farm Saved Seed?

Yearly 1500 applications for Plant Breeders’ Rights - 1000 application for EU PBR = +/- 30% of all applications (!) - 500 applications for national PBR

Development of new varieties by Dutch breeders

Ornamentals: (45%) • Rosa, chrysanthemum, petunia, pelargonium,

lilium, impatiens, gerbera, Phalaenopsis

Field crops: (30%) • Maize, wheat, potato, rapeseed, ryegrass,

sunflower Vegetables (20%) • Lettuce, tomato, capsicum, onion Fruit (5%)

Most important ‘PBR’ species