Property Rights on Plant Varieties

Abstract

There is a general agreement that Intellectual Property Rights are important for promoting research and in particular practical plant breeding. Providing an effective IPR system by countries increases the access to foreign-bred varieties for their citizens. The design of such a national IPR system for plant varieties requires a careful balancing of exclusive rights and exemptions taking into account the current (informal) seed systems for the particular crops and their intended development.The interest in Intellectual Property Rights for the protection of germplasm in the seed industry is growing with the increasing investment from the biotechnology as the value of the new traits will eventually be captured by outstanding varieties, which are bred by a combination of new technology and conventional breeding. The UPOV based Plant Variety Protection laws offer the most simple and adequate protection for breeders by combining a good scope of protection with a full freedom to operate. The Plant Patent in the USA, only accessible for asexually reproduced crops, except species with edible tubers, is of very little importance for the seed industry. The utility patent, also only in the USA available for conventional bred varieties, offers a very wide scope of protection at the choice of the applicant. This restricts the research freedom to the extent that allows only the study of the variety for making a phenotypic description. This very strong form of protection can be obtained without the “inventions” being tested against the prior art. As obtaining and defending utility patents is very expensive, it is only worthwhile for financial good yielding crops like corn and soybean. Furthermore, most of the patent claims have first to be tested in court before their validity will be known. Other forms of protection like trademarks, trade secrets and Material Transfer Agreements play a supplementary role, dependent of the crop and the circumstances. The agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the increasing use of IPRs have triggered some reluctance at the side of developing countries to implement western based IPR models like UPOV. Although UPOV is a well-balanced system for the protection of plant varieties, a solution must be found for the problem of the seed flow in the socalled informal seed systems. The Convention on Biological Diversity (CBD) and the International Treaty (IT) of the FAO, influence the development of IPRs on plant varieties, by requiring restrictions on IPRs and contributions to a fund for the maintenance of the agricultural genetic diversity.