The Breeding Exemption in Patent Law: Analysis of Compliance with Article 30 of the TRIPS Agreement

Abstract

The breeding exemption limits the right of patent holders by allowing plant breeders to use freely patented biological material for creating new plant variety types. Three European countries, France, Germany, and Switzerland, have already adopted this type of exemption into their patent laws, and the Netherlands is expected to amend its patent law by 2013. The debate in the Netherlands included the introduction of a “comprehensive breeding exemption” as well, that is an exemption that allows the commercialization of plant varieties containing patented elements. The proposal for amendments to patent law did not go unnoticed. The industry itself raised concerns with respect to the compliance of patent exceptions with the European directive on the legal protection of biological inventions (98/44/EC) and the TRIPS Agreement. Being all European Union (EU) countries signatories of the TRIPS Agreement, the EU directive provisions reflect the ratio and voluntas legis of TRIPS. Thus this paper focuses on article 30 of the TRIPS Agreement, the only provision that explicitly provides for exceptions to patent rights at international level. In this context, the analysis aims at proffering a solution to the high legal uncertainty characterizing the debate on patent exceptions for the plant-breeding sector.