Abstract
This article examines the inter-relationship between plant variety protection (PVP) laws and patent laws and their implications for food security. PVP laws were developed to encourage and protect agricultural innovations by conferring exclusive rights upon the developers of new plant varieties, subject to exceptions for farmers to save seeds for future plantings and for plant breeders to develop new varieties. With the application of recombinant DNA technologies to agriculture and the possibility of patenting DNA and associated enabling technologies the seed saving privilege and breeders’ exception in PVP laws could be circumvented. This has important implications for food security, as does recent efforts of plant breeders to patent their breeding methods. This article examines two recent determinations by the European Patent Office’s Enlarged Board of Appeal concerning attempts to patent plant breeding methods.
Highlights
1.1 Introduction The protection of plant varieties is a mandatory obligation for Members of the World Trade Organisation (WTO) who are obliged to implement the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement)
Produce or reproduce the material; condition the material for the purpose of propagation; offer the material for sale; sell the material; import the material; export the material; stock the material for the purposes described above. The protection under this legislation is afforded to a “breeder” or persons claiming through the breeder who is defined in Article 1 (iv) of the 1991 UPOV Act as “the person who bred, or discovered or developed a variety”
Article 15 (2) of the UPOV Convention 1991 provides as an optional exception that “each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety....”
Summary
Excepted from plant variety rights is seed saved by a farmer from harvested material and treated for the purpose of sowing a crop on that farmer's own land. Article 15 (2) of the UPOV Convention 1991 provides as an optional exception that “each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety....”. From the perspective of farmers, this is probably the most contentious aspect of the 1991 Act. Unlike the 1978 Act of UPOV, the 1991 Act does not authorise farmers to sell or exchange seeds with other farmers for propagating purposes. It has been suggested that for both social equity and food security reasons there are justifications for providing a ‘farmer privilege’ for smallholder and resource-poor farmers, especially in developing countries, whereby poorer farmers who do not represent an immediate or lucrative market would enjoy the ‘farmer privilege’ to save seed, while their richer counterparts would be required to pay royalties on saved proprietary seed.[3]
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