Proceedings of the Fifth Asian Regional Maize Workshop - Search ...

The proposed Directive also addresses the relationship between the patent system and the
PVR system through a compulsory 1icensing system. Any PVR holder is granted the right to a
patent license if his variety infringes the patent and if the license would be considered to be
in the public interest. Similarly a compulsory license on the PVR to the patentee is also
provided for. compulsory licensing has been seriously objected to by industry.
The proposed Directive contains an amendment which provides farmers the right to multiply
and propagate on their own farms seeds obtained from crops cultivated on their farms which
themselves were grown using seeds protected by patent. This amendment was introduced on demand
of the European Parliament but is strongly opposed by industry.
The emergence of patent rights in the agricultural domain, as a result of biotechnology,
has been generally perceived as an intrusion on the existing PVR system, and was initially
rejected in agriculture circles. These and other developments led to an initiative to revise the
UPOV Convention. The UPOV convention, a multinational treaty for the protection of plant
varieties, has been ratified by most industrial countries. In Europe, a proposal to introduce
Eureopean Community Plant Variety Rights has also come up for discussion.
The UPOV Convention was substantially revised in March 1991 in order to strengthen the
rights of breeders. The revised text has not yet been ratified by the national parliaments of
the UPOV member states. An important provision of the revised text is the extension of the scope
of the PVR to essentia17y derived varieties. These are defined as varieties that are derived
from a protected source variety, and which while clearly distinguishable therefrom, nevertheless
retain all the essential characteristics of the source variety. This is aimed at safeguarding
the original breeder's efforts in obtaining a specific combination of desirable characteristics
in a plant variety against the simple introduction into his variety of a distinguishing characteristic
either by means of mutation, repeated backcrossing, gene insertion or otherwise, without
changing the overall genetic composition of the variety. The new variety will be dependent on
the original variety and cannot be sold without the permission of the original breeder. How the
principle of essentially derived varieties will be applied in practice still needs to be determined.
The scope of protection in the revised UPOV convention extends not only to the propagating
material, but also to harvested material and products directly obtained from the harvested
material. With respect to the farmer's priVilege, a provision was introduced which stipulates
that each contracting state may impose restrictions in the PVR pertaining to farmer's privilege
as per its own requi rements.
The seed industry in developed countries is seeking harmonization of PVR and patent
legislation. In other words, a uniform and consistent interpretation of existing PVR and patent
laws is being sought to ensure optimal protection of plant varieties and biotechnological
inventions and to foster the overall innovatory potential and competitiveness of the seed
industry. The seed industry expects to benefit from the proposed amendments to IPR.
A detai led comparison of European and American Patent and PVR laws, and the proposed
amendments to these laws currently being sought, is given the Table 6.
Developing countries
-rhe enactment of strong PVR and patent legislation, similar to that in the industrialized
countries, is probably not appropriate for the developing countries, at least in the short term.
Any legislation, if enacted, must take into consideration the following:
Because of the bUdgetary constraints at both NARS and lARes, it is important that
private sector research in plant breeding is encouraged. Unless there is a
mechanism to protect value through some IPR mechanism, such as PVR, it will be
difficult to entice the private sector into varietal breeding, seed production,
and distribution. The timing may not be right, bUt eventually if private breeding
is to take-off and flourish, some mechanism to provide breeder's rights will have
to be created.
New technologies, such as biotechnology, are patent driven. Because of the high
costs associated with their development, it is important that a mechanism is
created to protect biotechnological inventions so as to encourage private sector
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