CIOPORA Chronicle 2015

The business magazine for horticultural plant breeding

JUNE 2015

WWW.CIOPORA.ORG

CIOPORA’S FUTURE

CHALLENGES

Securing another piece

of the puzzle

GENETIC RESOURCES

Are you being duly diligent?

Zooming in on IP

Law and practice

around the world

Table of Contents

07

From the President

The world is changing

10

IP Law: a balance

of powers

16

U.S. plant patent

protection and

public use

12

Should PBR

influence the

minimum distances

between varieties?

14

Who is ‘the breeder’?

18

Is border detention

in the Netherlands

an effective

enforcement tool for

breeders?

20

The easy way

to obtain PBR

in Turkey

21

From the

Secretary General

Securing

another piece

of the puzzle

22

Gen Y consumers:

flower purchasing

behavior and

social media

4 www.FloraCulture.eu | CIOPORA Chronicle June 2015

June 2015 CIOPORA Chronicle

24

The superlative of

miniature: a brand

new small world

26

New Code of

Conduct in Kenyan

flower industry

31

Recent changes

in the Turkish PBR

practice

32

Plant Variety

Protection in the

Russian Federation

28

Canada amends

its Plant Breeders´

Rights Act to

conform to UPOV’91

34

Ecuador: Latitude

and longitude,

altitude and attitude

36

Plant Variety

Protection System

in Mexico

38

Are you being

duly diligent??

43

Thoughts about

genetic resources

44

The promising

PVP system and PBR

law enforcement

in China

45

AGM: Defining and

refining the needs

of plant breeders

CIOPORA Chronicle June 2015 | www.FloraCulture.eu 5

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Become a member of CIOPORA

CIOPORA is an international, non-governmental organisation

representing the interests of breeders of asexually reproduced

ornamental and fruit varieties worldwide. CIOPORA has currently

102 members including individual breeders, breeding companies, IP

lawyers and royalty administration services. Top priority of CIOPORA

is the constant development and enhancement of systems of Intellectual

Property Protection for plant innovation, which include Plant Breeders´

Rights, Patents, Plant Patents and Trademarks. CIOPORA acts as a

strong voice of the industry in regard of IP protection. The association

enjoys the observer status at the Community Plant Variety Office

(CPVO) and the International Union for the Protection of New

Varieties of Plants (UPOV).

The Board invites you to join CIOPORA’s global member community.

The persons eligible for membership are defined in the CIOPORA’s

bylaws. Each member candidacy is subject to approval by the

CIOPORA Board.

More information about membership: www.ciopora.org.

Contact us: info@ciopora.org

Tel: +49 (0)40-555-63-702 or Fax: +49 (0)40-555-63-703


From the President

The world is changing

Andrea Mansuino.

I

believe that, quite possibly, the world has never changed as quickly and intensely as it has in the

last twenty years.

Of course I am not underestimating the importance of many historical events which have

determined fundamental evolutions, such as the rise and fall of the Roman Empire, the discovery of

the Americas, the American and French Revolutions, the industrial revolution and the World Wars, to

name a few.

But, in my humble opinion, the big difference between those historical events and the changes that

have occurred in the last two decades is that the recent revolution involves, all together and at the same

time, all humanity and all generations, without limitations.

The digital revolution is probably the most-democratic, overwhelming, radical change the global

society has ever seen. Computers, tablets and especially smart phones, all connected to the Web, make

communication and access to instantaneous information easy, fast, cheap and borderless. The first

internet page went live in 1991 – the year internet connections worldwide reached one million, and

also the year the last Act of the UPOV Convention was signed. There are now billions of Web pages,

much more than 3 billion internet users worldwide (with this number increasing every second), while

plant breeders still deal with the same UPOV Convention.

Communication and fast, ready-to-use information have now taken the lead in shaping human

destinies. Economy and business are deeply influenced by such changes, as is politics, international

relations (including war and peace dynamics), science and society as a whole.

What I find very interesting, and maybe less obvious, is that in this scenario the ‘software’ has evolved

more and faster than the ‘hardware’. In other words, flexibility, infrastructure and dynamism prevail

over steadiness, structure and tradition.

The growth and profits of flexible and dynamic digital companies have taken over the previously

dominating power of heavy industry giants; and within the first group, those companies who excel

in software and digital solutions grow more and make more profits than the traditional hardware

specialists.

Innovation and flexibility are now the keys to success; knowledge and adaptation to change often

make the difference between being successful or disappearing, while heavily-structured businesses

suffer because of their slow reaction to new opportunities and their often unbearable overheads.

In our industry, we see a similar situation. The business for breeders is inevitably global, and companies

have a hard time being cost effective.

In my opinion, Intellectual Property is the answer to these issues, for everyone. Our industry definitely

needs a robust and fair Intellectual Property system in order to protect and stimulate innovation and to

allow cost-effective licensing management through the product chain or in the vertical integration.

In fact, breeders need still a “sui generis and effective protection system” (quote from TRIPS

agreement), which in simple terms means a juridical IP tool that is specifically conceived for plants and

that must be (easily) enforceable.

CIOPORA is highly-commited to breaking the stalemate. Addressing the need for an effective

IP system for plants has been the mission of CIOPORA for more than 50 years and is still the main

concern of the organization today.

The recent Broccoli/Tomato sentence by the Enlarged Board of Appeal of the European Patent Office,

which confirms the positive trend for the patentability of products obtained also through essentially

biological processes in the European Union (consistent with a global trend which sees many countriesfor

example the United States, Australia and Japan- already offering this possibility to plant breeders),

shows that important changes also happen in our industry and that the UPOV system may be obsolete,

after about 25 years from its last Convention, and not adequate enough to protect the interests of

breeders.

CIOPORA observes, with attention, these changes and actively debates about the positive or negative

consequences of such changes for our industry. New CIOPORA positions have recently been approved

by its breeders on various fundamental topics in plant protection. Positions on very difficult matters

>>>


From the President

such as the ‘breeders´ exemption’ or the ‘minimum distances for distinction between protectable

varieties’ have been unanimously approved by the CIOPORA membership, which includes most

prominent flower and fruit breeders from Holland, Germany, France, USA, New Zealand, Australia

and South Africa, just to mention a few countries.

And on another note, to avoid doubts and react to some unsubstantiated rumors, let me confirm that

these positions state that CIOPORA is strongly in favor of the breeders´ exemption, a fundamental

UPOV principle that allows genetic improvement in the plant world, and is strongly in favor of robust

IP protection for new and clearly distinguishable plant varieties.

In the last Annual General Meeting (AGM) in Hamburg, in April 2015, CIOPORA members once

again approved a complex position paper on various General Matters of Plants Breeders´ Rights,

including the concept of Novelty, different formal issues and enforcement, amongst others. Intense

discussions are also taking place on two very hot topics - the Essentially Derived Varieties and the

use of Patents in the plant world - and members wish further debates based on substantial knowledge

before accepting any position.

Also at AGM 2015, we discussed the future or our organization and how to better meet the needs

of our members. CIOPORA has decided to question itself and to try to find an answer to the

fundamental question: “Where do we want to be in five years?”.

Based on a SWOT analysis conducted by an external auditor and on a Members’ Web Survey,

CIOPORA has decided to increase its commitment in areas where its knowledge can be of great

support for the breeders in addition to its fundamental mission of networking among breeders and

supporting breeders' rights, worldwide.

More communication and education on IP in plants directed to members and to the whole industry,

more political involvement in Patents and Biodiversity discussions and their implications for the

breeders, and an active assistance in the enforcement activities of its members are the new priorities of

CIOPORA for the coming years.

I am very proud of this process, which is very democratic and challenging especially for the CIOPORA

leadership. As President of this organization, I am very confident that all the above will bring fruitful

results for the breeders´ community. Our Board, our Secretary General and the entire CIOPORA

office are deeply committed to making the association better every day, understanding the needs of the

members, and anticipating changes in the industry and society.

In the pages of this magazine you will read very high-level articles written by some of the top experts in

our industry. I am sure that you will find them informative, educational and intellectually enriching.

CIOPORA is proud to offer them to you.

I wish you a good reading.

Sincerely,

Andrea Mansuino

President of CIOPORA


Zooming in on IP

When we think

of the normal life

cycle of a company

– taking a new idea

from start-up phase

through absolute

growth, to maturity

and, finally, downfall

– we think of the

modern, industrial

company. Today,

more often than

not, this cycle

also applies to

businesses in the

agriculture industry.

by Jaap N. Kras

IP Law: A balance

of powers

A

century ago, farms

were mostly quaint and

picturesque. The period of

the farmer families - taking care

of a few cows, horses and chickens

running behind the farmhouse,

the wife milking goats daily and

the happy farmer smoking a pipe,

whistling and eavesdropping for

an echo under the golden sun

of the Alps – is history. Today,

agriculture is less quaint. It is big

business governed by big laws.

Large farms versus

monopolies

To regulate economical behaviour

by law or treaty is a matter of rope

dancing, if not impossible. On

the one hand, certain economical

behaviour has to be stimulated,

for instance through Intellectual

Property laws; on the other hand,

economic power is sometimes

abused.

Often, only big and strong

companies can control the market

by using their dominant position.

Because of this, agriculture companies

must industrialize through

horizontal and vertical integration.

However, we see problems

arising when originally small

companies expand into companies

with dominant positions in

the market.

Let us not forget that there are

laws in place to protect agricultural

companies from falling prey to

monopolies. According to Article

42 of the European Union Treaty,

an exemption for agriculture

companies exists in relation to

the cartel regulations in Article

102, which is aimed at preventing

abuse by large companies. On

the other hand we see undertakings

with a dominant position in

the market abusing their power.

Perhaps we need rules to prevent

misuse of this dominancy.

Intellectual

Property Rights

The growing number of applications

for patents and breeders´

rights proves the importance of

these rights. Also the growing number

of trade marks shows that farmers

are serious about the importance

of distinguishing themselves.

There are many uncertainties in the

relationship between patent and

breeders´ rights. The most-recent

demonstration of this is the broccoli

case, which says all inventions

in the plant world can be patented,

leading to even more questions in

the breeders´ world. Will this lead

to the end of the breeders´ right if

all inventions in the plant world

can be brought under patents to

dominate agricultural trade and

undermine the position of the

breeder?

Shortage of legal

knowledge

Part of the weak position of breeders´

rights today is our own fault

and our own shortage of legal

knowledge. Many prominent

agriculture leaders have dominated

breeders´ rights discussions for years

without understanding the legal

character and implications of the

rights. These legally inexperienced

individuals are the same people

holding positions in governmental

bodies that grant and control breeders´

rights. This unfortunate truth

has resulted in weak breeders´ rights

and poor jurisprudence despite the

International Union for the Protection

of New Varieties of Plants

(UPOV) being in existence for more

than 50 years.

For years, we lawyers have left

the discussion to engineers who

study agriculture but not law.

They are people with a different

education from other disciplines,

with limited understanding of the

juridical systems. And we’ve seen

the problem again in the recent

broccoli decision. The reaction was

that inventors can patent existing

characteristics in plants. Quod non

of course.

Important responsibility

A patent is like a breeders´ right

and all other Intellectual Property

rights - an absolute right on a

product of the mind. An abstract

product. In my opinion (to say it

loud and clear): to have a patent or

breeders´ right on a chromosome

or a gene is impossible. I think

UPOV and the Community Plant

Variety Office (CPVO) as important

breeders´ right organizations

not only have a political task but

also an important responsibility

to strengthen the legal knowledge

of breeders´ rights. If the content

is not clear, how can you do your

tasks well?

Plant Breeders´ Rights

UPOV was founded on December

2, 1961. In that year, the most

important discussion in the organization

was the minimum distance

between varieties. More than 53

years later, the most important

discussion is still the minimum

distance between varieties. Instead

of providing solutions to these

discussions, the UPOV doubled the

controversy with the introduction

of Article 14(5) in the 1991 Act,

which established that the scope

of protection of a plant variety also

extends to varieties which are essentially

derived from the protected

variety, where the protected variety

is not itself an essentially derived

variety.

While the question until 1991

was: “Does this variety differ from

all other varieties (new and DUS)

and thus can be granted a new

breeders´ right?”, now the system


is indeed that you have a new

variety and a new breeders´ right

but still need the permission of

the holder of an existing breeders´

right because it looks like one of

the protected parents. Yes, it is new

to be granted a breeders´ right, but

not new enough that you still need

permission from another (the story

of half pregnancy).

An apple is not

a gerbera

Why do we need breeders´ rights?

In the plant world we deal with

living material. Every plant has

parents. Industrial inventions can

be reproduced the same one patent

fits all. The justification to have

breeders´ rights for plants is that

not one single plant is exactly like

other plants. No child is totally the

same as his parents, as the one-egg

twin researchers have proven.

That difference with industrial

products is the real value of breeders´

right. Where patent law can

be made for all inventions in the

biological world, we have to live

with the realities of differences.

An apple is not a gerbera. For a

carrot, the colour of the root might

be important; for a begonia,

not at all. We should have taken

responsibility within the last 50

years to differ breeders´ rights

according to the needs of different

crops and their main characteristics.

The goal of breeders´ rights is

to stimulate breeding. Therefore,

fruit breeders might need wide

minimum distances and vegetable

breeders´ small minimum distances

in granting a breeders´ right.

The criteria must be based on how

to best stimulate breeding.

More important rope

dances to come

And it gets worse. In the

Netherlands, a country influential

in UPOV and the EU breeders´

rights, we still have foremen who

do not know what a breeder is,

when a breeders´ right is founded

or when the absolute rights on a

new variety begin. We still have

those startling confusing law

texts in our breeders´ rights law

book (see ZPW Article 1 (j) and

ZPW Article 50 (1) “What is a

breeder?”).

Recently I have heard of discussions

of excluding the breeders

and research exemption by way of

contracts. Perhaps in the future

it will be followed by contracts

where the trader extends the time

of protection. That certain parts

of the breeders´ right law are

integrated parts of the rights itself

(constitutive demands), which

cannot be exempted or conditioned

by contracts, should be the discussion

here. And, there are more

important rope dances to come, in

my opinion.

When is a breeders´ right exhausted

(Article 16 of the UPOV 1991 Act)?

And what are the public interest

criteria to restrict the free exercise

of breeders´ right (Article 17)?

Yes, it is important to expand the

UPOV with new members! But

more important is to have clear,

transparent, uniform, homogeneous

and stable rules. So let us start

to make DUS breeders´ right rules,

after 50 years, a requirement and

not a luxury. |||

About

the author

Jaap Kras is an

industry veteran and

the owner and publisher of

FloraCulture International.


Minimum Distance

The breeders

of vegetatively

reproduced

ornamentals and

fruit varieties,

represented by

CIOPORA, are deeply

concerned about the

distances between

plant varieties, as in

trade some varieties

no longer can be

distinguished from

each other. w

Should Plant Breeders´

Rights influence the

minimum distances

between varieties?

by Kees van Ettekoven

For some time, CIOPORA has

claimed that in the decision

on distinctness not all

characteristics from the guidelines

and protocols should be used, but

rather a specific set of characteristics

that represent a certain value for the

crop concerned.

Some thoughts on

the subject

In ornamentals and fruit species,

especially, there usually is a strong

link between the description of a

variety as it is made as a result of

the DUS test in the framework

of Plant Breeders´ Rights and the

features of the variety that are

important to market the variety.

Examples are flower colour, fruit

shape, stem length, et cetera.

This is a consequence of the testing

method; usually the characteristics

are visually observed and so far not

many other characteristics play a role.

Further more, there is a comparable

importance of variety characteristics

for grower and consumer.

In other sectors this is not, or is far

less often, the case. Many vegetable

varieties cannot be distinguished

visually, but differ in e.g. earliness

or disease resistance. For growers,

these differences are very important,

where at the same time the average

consumer can barely distinguish

Butterhead lettuce from Iceberg

types. The information of the

features of the varieties is communicated

by the breeders to the growers.

In agricultural species, the situation

is even far more complex; in wheat

and grasses only by measuring and

the application of statistics varieties

The breeders of vegetatively reproduced ornamentals and fruit varieties, represented

by CIOPORA, are deeply concerned about the distances between plant varieties.

can be distinguished. Also here

farmers are very keen to choose

those varieties that suit their needs

best. To make this choice they do

not refer to the descriptions made

for Plant Breeders´ Rights, but

separate VCU (Value for Culture

and Use) trials are being organised.

Consumers usually have no notion

at all from which variety their bread

is baked.

UPOV principle

The UPOV ’91 convention states in

Article 7: Distinctness: “The variety

shall be deemed to be distinct if it

is clearly distinguishable from any

other variety whose existence is a

matter of common knowledge, et

cetera.”

In the practice of the test to establish

distinction, there is a tendency

to consider also small differences as

sufficient. Especially in ornamentals,

where the test is often carried

out with the candidate and the closest

comparing variety side-by-side

in the trial. It cannot be excluded

that the availability of the EDV concept,

that gives the Right Holder at

least the possibility to act if new varieties

are too close to his protected

one, lessened the pressure to ensure

larger differences between varieties.

At the same time, many applicants

make a very convincing case when

the DUS tester is in doubt to show

that the varieties are different and

thus it is clear that Plant Breeders´

Rights should be granted.


CIOPORA position

The CIOPORA position paper on

Minimum Distance announces

the wish to introduce the change

from the present botanical driven

definition of the requirement of

a variety. The wish is to be clearly

distinguishable into a system that

takes into account only those

characteristics that represent a

certain agreed value for the species

concerned.

Case study

A project has been defined to test if

it is feasible to apply this approach

and identify possible problems

in doing so. This project will be

submitted for financing to CPVO

as R&D project.

In the project, three different

species will be studied: apple, rose

and pelargonium. The present

CPVO guideline will be used as

basis. CIOPORA will propose a

reduction of the characteristics

that may be used to study

Distinctness. This will be done

by deleting certain characteristics

or states of expression within the

characteristics.

Using the amended reduced guidelines,

the CPVO entrusted examination

offices will re-examine 50

recently protected varieties of rose,

apple and pelargonium on paper to

see the possible effect of the defined

modified protocol.

The report on the conclusions of

this case study can be used in further

discussions on the subject.

For apple the entrusted offices

are: BSA (DE), COBORU (PL),

GEVES (FR), NEHIB (HU) and

UKZUZ (CZ).

For rose: Naktuinbouw (NL), BSA

(DE) and NIAB (VK).

For Pelargonium: BSA (DE).

Before the results are available, it is

always dangerous to prelude on the

outcome of a project. However a

In ornamentals,

the test is often

carried out with

the candidate and

closest comparing

variety sideby-side

in the trial

(Photo European

Pack Trials at

Hem Genetics).

few predictions can safely be made:

• If results of the Distinctness analysis

will be considerably different

from the original one, discussion

will take place among the applicants

where some will see their

variety as no longer distinct.

• If as a result a movement will be

launched to amend the present

DUS test two important UPOV

hurdles have to be taken. The

principle that all applications are

subject to the same DUS treatment

regardless the species or sector and

the principle that the UPOV guidelines

are really guidelines. And

even if an application is clearly distinct

on a characteristic that is not

included in a guideline but fulfils

the UPOV criteria for a characteristic

it can be granted rights.

Closing remarks

The results of the case study will

have no effect on the rights granted.

The definitions used for this case

study will only be developed for

this case study. This study does

not mean a priori that the present

system of testing applications will be

changed. The results of the project

will be presented and discussed with

representatives of the ornamental

and fruit breeders. |||

About the author

Kees van Ettekoven heads the Dutch Plant Breeders' Rights and Variety

Testing system in the Netherlands that is established in Naktuinbouw, the

official Inspection Service for Horticulture in the Netherlands. Under his

responsibility a team of 65 staff members annually tests 3,000 new varieties

on Distinctness Uniformity and Stability according to the UPOV principles.

In ornamentals and fruit species,

especially, there usually is a strong link

between the description of a variety.


Zooming in on IP

This contribution is

not a horticultural

“whodunit”, but

an attempt to

clarify the concept

which might be

considered as quite

straightforward

by the majority of

readers.

Who is ‘the breeder’?

by Bart Kiewiet

and Tjeerd Overdijk

A

Plant Variety Right (PVR)

cannot exist without an

owner, usually the breeder.

The Council Regulation (EC) No

2100/94 on Community plant

variety rights (“Basic Regulation” or

“BR”) sets forth that ‘the breeder’

shall be entitled to the Community

PVR.

This rule seems logical and clear,

but its implementation and interpretation

do not always appear

to be that simple.

Definition

The 1991 Act of UPOV (‘the Convention’)

gives a threefold definition

of ‘the breeder’.

According to Article 1 (iv) of the

Convention ‘breeder’ means:

• the person who bred, or discovered

and developed, a variety,

• the person who is the employer

of the aforementioned person

or who has commissioned the

latter’s work, where the laws of

the relevant Contracting Party so

provide, or

• the successor in title of the first or

second aforementioned person, as

the case may be;

Case law on “breeder”

For the purpose of this contribution

we will focus on the first indent of

the definition in Article 1 (iv) of

the Convention. This part consists

of two main elements: (1) “the person

who bred (…) a variety” and

(2) “the person who (…) discovered

and developed, a variety”. The

first element of that description

- “the person who bred the variety”

- is not very helpful, because the

Convention lacks a definition of

‘breeding’. The interpretation of

this term is left to the authorities

implementing the Convention.

In this article we have a closer look

at how the Community Plant Variety

Office (CPVO) interprets the

notions of breeder and breeding

when examining the entitlement to

a Community Plant Variety Right.

In the Basic Regulation the EU

adopted the same definition of

‘the breeder’ as the Convention (at

least the first element). Like the

Convention, the Basic Regulation

does not provide any definition of

‘breeding’.

Article 54(2) of the Basic

Regulation states that the first

applicant shall be deemed

entitled to the Community PVR,

unless the CPVO is aware that

entitlement is not or is not solely

vested in the first applicant. In

other words, the main principle is

that the first applicant is deemed

to be the breeder. In most cases

it is not necessary for CPVO to

make a profound assessment of the

breeding process of a variety, which

is the object of an application

for protection. However, in the

event that a person other than the

applicant claims to be the breeder

of the variety, the CPVO will have

to investigate its breeding history.

As follows from case law of the

Board of Appeal of the CPVO (see,

for instance, case A 017/2002) the

burden of proof in such a case is

put on shoulders of the third party

that claims entitlement to the

PVR under the application. That

party has to produce convincing

evidence that he or she, and not

the applicant, has bred the variety

in question.

Another interesting issue is how

the Office should deal with a

situation where a third party

contests that the applicant is

the breeder, but leaves open the

question about who the real

breeder is. This situation is not

foreseen in the BR. It seems in

line with the legal assumption in

Article 54(2) BR (i.e. as a rule the

first applicant is the breeder) that

also in such situation the burden of

proof that the applicant is not the

breeder rests with the third party.


Not a mere discovery

In trying to decide on the identity

of the breeder, it will be necessary

to answer the question, what has

to be understood under ‘breeding’.

The CPVO practice shows that in

its opinion ‘breeding’ encompasses

all techniques aimed at creation

of a new variety, not only classic

crossing and back-crossing, but also

acts of genetic engineering resulting

in the modification of part of the

genome of existing varieties. To put

it in words of the CPVO Board of

Appeal 1 ‘breeding’ does not necessarily

imply inventing something

totally new, but “includes the

planting, selection and growing of

pre-existing material and its development

into a finished variety.”

The second element of the definition

of ‘breeder’, “[the person] who

discovered and developed a variety”,

did not enter the Convention

without a fundamental discussion

on its bearing. The proposal for a

new act (version) of the Convention,

as discussed in the Diplomatic

Conference in 1991, contained the

following definition of ‘breeder’:

“the person who bred or discovered

a variety”. There was no mention

of ‘developing’. It was emphasized

that the notion ‘discovery’ was not

only related to varieties as they occur

in the wild, but also, and perhaps

foremost, to mutations of plants

growing in cultivation conditions.

Nevertheless, there was a common

understanding that the mere act of

discovery should not qualify the

person concerned as the breeder of

the variety in question. A proposal to

add ‘and developed’ after ‘discovered’

was finally carried by a large majority.

Article 1(iv) was consequently

adopted in its present form.

The history of the second part of

the definition of ‘breeder’, as summarized

above, shows clearly that

only the person who performs the

acts of discovery and development,

in combination, is ‘the breeder’ of

the variety in question. But what do

these two acts imply exactly? Also at

this point it was for the case law to

give more clarity.

Clarification of

“discovery”

In a landmark decision 2 the CPVO

Board of Appeal has given its

opinion with regard to the meaning

of the term ‘discovered’. In the

opinion of the Board of Appeal ‘discover’

means that somebody comes

across a variety either by search or

by chance, being conscious of the

fact that it is a new variety, which

was unknown to him before and

which, in his opinion, is unknown

to others. It is possible therefore,

that one and the same variety is

discovered by two or more persons

independently, at different points

of time in the same location or in

different locations.

Many license contracts in respect

of the reproduction of ornamental

varieties hold a clause concerning

the exploitation of mutations of the

variety concerned that will be ‘discovered’

by the licensee. Whatever

its contents, such a clause cannot

have as a legal consequence that the

licensee fails to qualify as breeder in

the sense of the Convention in case

he develops that mutation into a variety

eligible for protection. Therefore,

when entering into or advising

on license agreements, it is advisable

to work with the available definitions

and interpretations thereof we

can find in the case law. |||

1 CPVO Board of

Appeal, case

A17/2002 (BR9)

of 3 April 2003

2 CPVO Board of

Appeal, case A

001/2004 of 16

December 2004

About the authors

Tjeerd Overdijk is a lawyer and co-owner of Vondst Advocaten. Former

CPVO President Bart Kiewiet is a leading specialist in plant variety rights,

and also an expert in the fields of Dutch and European administrative

law. He is co-author of a standard work of reference on community plant

variety rights and regularly speaks at seminars and as visiting lecturer at

the universities of Wageningen and Strasbourg.


IP in the World

The United

States offers

patent protection

for asexually

reproduced plants

with plant patents.

The requirements

for obtaining a U.S.

plant patent include

novelty, utility and

non-obviousness.

by Robert Jondle, Ph.D., Esq.

and Krista Hill, Ph.D.

U.S. plant patent

protection and public use

To be novel, the invention

must NOT have been

patented, described in a

printed publication, or in public

use, on sale, or otherwise available

to the public before the effective

filing date of the claimed invention,

with the exception of a one

year grace period for the inventors’

own disclosures. A recent U.S.

court appeal decision in Delano

Farms v. California Table Grape

Commission sheds new light on

the concept of “public use”.

Background

The California Table Grape

Commission, an agency of the

state of California, has an exclusive

license from the U.S. Department

of Agriculture (USDA) for the

patented table grape varieties

‘Scarlet Royal’ (U.S. Patent No.

PP16,229) and ‘Autumn King’

(U.S. Patent No. PP16,284).

The Commission sublicenses

the patents to grape growers in

California and collects royalties

on the grapes produced that are

shared by the Commission and the

USDA.

In Delano Farms v. California

Table Grape Commission (No.

2014-1030, Fed. Cir. Jan. 9, 2015)

the U.S. Federal Circuit Court of

Appeals upheld a California court

decision challenging the validity of

the plant patents for ‘Scarlet Royal’

and ‘Autumn King’. The plaintiffs,

Delano Farms Company, Four

Star Fruit, Inc. and Gerawan

Farming, Inc., are California

grape growers who purchased

the grapevines, signed license

agreements with the Commission

and paid the licensing fee. The

plaintiffs sought to invalidate the

plant patents under the public use

bar on the ground that the two

grape varieties were available to the

public more than one year prior to

the filing date of the applications,

also known as the “critical date”.

The U.S. plant patent applications

for ‘Scarlet Royal’ and ‘Autumn

King’ were filed on September 28,

2004, making their “critical date”

for public use bar September 28,

2003.

The story behind

the lawsuit

The story begins on August 22,

2001, when the USDA held an

experimental variety open house

at California State University in

Fresno where USDA representatives

displayed unreleased table grape

varieties, including ‘Scarlet Royal’

and ‘Autumn King’. In attendance

at the open house was California

grape grower Jim Ludy, who asked

USDA employee Rodney Klassen

if he could give him some of the

plant material of ‘Scarlet Royal’

and ‘Autumn King’. Apparently,

Mr. Klassen had given Jim Ludy

unreleased plant material in the

past. Despite the fact that he was

not authorized, in early 2002 Mr.

Klassen gave Jim Ludy plant material

for ‘Scarlet Royal’ and ‘Autumn

King’. Mr. Klassen instructed Jim

Ludy not to let the material “get

away from [him]” and not to “put

them in a box,” which was understood

to mean that he was to keep it

secret and not sell any grapes until

the varieties were commercially

released.

At that time, Jim Ludy knew that

neither variety had been released by

the USDA and that he was not authorized

to have the plant material.

Nonetheless, Jim Ludy subsequently

grafted numerous vines of

‘Scarlet Royal’ and ‘Autumn King’

and also gave “a few buds” to his


cousin, Larry. Larry Ludy also

knew that the material had come

from the USDA and that it had

not yet been released, and he knew

that the Ludys’ possession “was

supposed to be a secret”. By 2003,

Larry Ludy had produced hundreds

of vines of ‘Scarlet Royal’ and ‘Autumn

King’. Additionally, Richard

Sandrini, who served as table grape

marketer for Jim and Larry Ludy,

was also informed of the Ludys’

unauthorized possession. After

the critical date, Mr. Sandrini sold

Larry Ludy’s 2004 harvest of ‘Autumn

King’, but to avoid detection

he labeled the grapes as “Thompson

Seedless”.

Appeal ruling

In the U.S., use by a third party

who did not obtain the invention

from the inventor named

in the application or patent is an

invalidating use only if the use was

accessible to the public. An inventor

creates a public use bar when

the inventor shows the invention to,

or allows it to be used by, another

person who is “under no limitation,

restriction, or obligation of confidentiality”

to the inventor.

Therefore, the U.S. appeals court

agreed with the earlier California

court ruling that the Ludys’ use

of the two grape varieties was not

public. The evidence supported that

the majority of the Ludys’ plantings

prior to the patents’ critical date

bore no usable fruit and that they

did not sell any grapes from those

plantings prior to the critical date.

None of the Ludys had disclosed

their possession of the unreleased

varieties to anyone aside from Mr.

Sandrini nor did they provide plant

material to anyone else until after

the critical date. Although the

Ludys’ ‘Scarlet Royal’ and ‘Autumn

King’ vines were not fenced and

were growing next to publicly

accessible roads, none of the vines

were marked or labeled in any way,

making them virtually unidentifiable.

AIA and “public use”

The America Invents Act (AIA)

introduced changes to the U.S. patent

system on September 16, 2011.

Under the AIA, the public use

provisions described above remain

mostly the same with respect to

uses by either the inventor or a third

party. Notable changes under the

AIA include that a prior public use

does not need to be in the U.S. to

qualify as prior art, and that the

one year grace period for public

use is measured from the effective

filing date of the application (i.e.,

from any earlier filed applications).

In considering the present situation,

it seems unlikely that the AIA

would have changed the outcome

of this case regarding “public use”.

The decision in this case emphasizes

the importance for owners of

plant varieties to, prior to filing for

a U.S. plant patent, have signed

agreements with all parties having

access to experimental plant material

to avoid any disclosure which

could result in unauthorized “public

use”. Well-written agreements,

such as confidentiality, material

transfer, experimental testing,

production and commercialization

agreements, are important

in maintaining proper control of

proprietary material. |||

About the author

Both Robert Jondle, Ph.D., and Krista Hill, Ph.D., hail

from Jondle Plant Sciences, Jondle & Associates,

P.C. Krista is a patent agent, while Robert

is a patent attorney.


IPR Enforcement

In 2013, the EU

customs authorities

detained almost

36 million items

suspected

of infringing

Intellectual Property

Rights (“IPR”) 1 .

Border detention

measures can

be an effective

enforcement tool for

breeders to enforce

their PVR in the

Netherlands.

by Fleur

Tuinzing-Westerhuis

Is border detention in the

Netherlands an effective

enforcement tool for breeders?

Even though the percentage

of detentions on the basis of

suspected infringements of

Plant Variety Rights (“PVR”) is

still relatively low in comparison to

other IPR (0.40 % of the articles

detained by customs authorities)

border detention measures can be

an effective tool for breeders to enforce

their PVR in the Netherlands.

Over the past years, Dutch customs

authorities have detained various

shipments of ornamentals (roses

and gerbera) and fruits such as table

grapes, strawberries and citrus fruit.

The majority of these detentions

have been settled out of court.

The EU Anti-Piracy

Regulation

According to the EU Anti-Piracy

Regulation 2013 (“APR”) 2 , the IPR

holder can request the customs

authorities to suspend the release of

the goods or detain goods (hereafter:

“detain”) that are suspected of

infringing IPR. The APR applies

to goods that are imported into

or exported from the EU and to

goods in transit, provided that there

is an indication that the latter are

intended for the EU market 3 . The

APR does not apply to genuine

goods that are imported without

consent of the IPR holder, such as

illegal parallel trade and overruns.

How does it work?

Border detention measures can

be applied for in The Netherlands

by filing an application form at

the IPR Team of the customs authorities

in Groningen, The Netherlands.

The customs authorities

are entitled to act ex officio, but in

practice they rarely act without an

application in place. The IPR holder

can choose between a national

application and, for Community

IPR, a EU application. In addition

to enforcing PVR, breeders can also

base their request for action by customs

on other IPR, such as patents

and trademarks.

When the customs authorities

identify a suspected infringing shipment,

the procedure is as follows:

1. Customs authorities simultaneously

notify both the IPR holder

and the declarant or holder of

the goods (jointly: “holder of the

goods”) of the detention, and

provide information about the

quantity and the nature of the

goods;

2. Upon request of the IPR holder,

customs can provide additional

information, such as the names

and addresses of consignee,

consignor, declarant or holder

of the goods or the origin and

destination of the goods;

3. The IPR holder will have the

opportunity to inspect the goods.

Only in respect of counterfeit or

pirated goods 4 samples can be

provided to the IPR holder for

further analysis;

4. The IPR holder has to inform

the customs authorities within

ten working days (in the event

of perishable goods within three

working days) of notification if

the goods are infringing and if

he agrees with destruction of the

goods;

5. The holder of the goods can

object to destruction of the goods

within ten (or in the event of

perishable goods - three) working

days from notification.

Scenario A –

simplified proceedings

If the IPR holder confirms that his

IPR are infringed and agrees to

destruction, and the holder of the

goods agrees to (or does not object

timely) to such destruction, the

customs authorities will proceed

with destruction of the goods,

without necessity of legal proceedings

in which it can be determined

if the goods are actually infringing

the IPR.

Scenario B –

legal proceedings

If the holder of the goods objects to

destruction, the IPR holder will have

to initiate legal proceedings in which

it can be determined if the goods are

indeed infringing his IPR within ten

days from the detention notification.

In case with non-perishable goods,

this term can be extended once for

10 working days. If the legal proceedings

are not initiated timely by

the IPR holder, customs authorities

will release the goods. At this stage,

it will be sufficient to request a civil

court to grant leave for pre-judgement

seizure, as this will have to be

followed up by the proceedings on

merits in which it will be determined

if the goods are in fact illegal. While

the legal proceedings are pending,

the customs authorities will detain

the goods.

Scenario C –

illegal parallel import

or overruns

If it appears that the goods are illegal

parallel trade or overruns, the

customs authorities will release the

goods. However, in Dutch case law,

it has been held that the information

obtained from the customs

authorities relating to suspected

infringing goods can be used by

the IPR holder to take civil action

in the event the goods appear to be

illegal parallel trade 5 . If the goods

are seized pursuant to a leave for

pre-judgement seizure granted by

the court, the customs authorities

will not release the goods.

Accurate information

The success of border detention

measures strongly depends on


information provided to customs

authorities in the application form.

As most breeders have a licensing

network of propagators, growers

and traders, and as the parties

in this network closely monitor

infringing activities, breeders are

generally able to provide customs

authorities with detailed and

accurate information about both

authorized and infringing products

(in some cases even the name of a

vessel or arrival time of a shipment).

The more accurate the provided

information is, the higher the

chance of the detention action

success.

Limited time to assess

infringement

The APR provides for a specific

regime for perishable goods 6 . In

respect of such goods, the term to

respond to the customs notification

and the term to initiate legal

proceedings is only three working

days from the notification of the

detention. Because of the short

and overlapping terms, this can

lead to practical problems when

the holder of the goods withholds

his objection until the end of the

In 2013, the EU customs authorities

detained almost 36 million items

suspected of infringing Intellectual

Property Rights (“IPR”).

three working day term, which

coincides with the end of the term

during which the IPR holder is

required to initiate legal action to

prohibit the release of the detained

goods. To ensure that the alleged

infringing goods are released, the

breeder can ask a civil court to

appoint a pre-judgement seizure

to preserve evidence immediately

after detention notification.

Inspection ‘on the spot’

The Dutch customs authorities do

not always possess the necessary

information to assess if the goods

are infringing any PVR or other

IPR. In practice, immediately

after detention, the IPR holder is

given an opportunity to have a

technical or legal expert analyze

the goods at the terminal. This

means that the IPR holder needs

to have a legal and technical

expert present in the jurisdiction

where border detention measures

are taken. Only in case of

counterfeit and pirated goods,

samples can be provided to the

IPR holder for further analysis. In

order to obtain samples of goods,

the breeder can aks a civil court

to issue an evidentiary seizure. It

is noted that under Dutch law,

separate proceedings will have to

be initiated to obtain access to

material seized pursuant to such

evidentiary seizure leave.

Risk

Finally, border detention of goods

can also present a risk to the IPR

holder. The IPR holder is required

to reimburse the customs for all

the costs which arise from the detention

measures and then claim

for compensation of such costs

from the infringer. Furthermore,

if the customs proceedings are discontinued

due to an act or omission

of the IPR holder, samples are

not returned timely or damaged,

or the goods are determined to

be legal, the IPR holder will be

held liable for damages suffered

by the holder of the goods. In

this respect it is noted that in The

Netherlands, the cost of the legal

proceedings in IPR infringement

cases is carried by the losing party.

Conclusion

The border detention measures,

particularly in combination with

civil measures, can serve as an effective

tool for PVR enforcement

in the Netherlands. However, a

breeder who is considering to file

a request for action by the Dutch

Customs Authorities should be

well prepared. In order to be able

to act quickly, breeders should

have technical and legal experts

available in the jurisdiction where

such measures are to take place. |||

1 Results on customs enforcement

of Intellectual Property rights,

results at the EU border 2013,

Publication Office of the

European Union 2014, p. 21. The

statistics over 2014 were not

yet published at the date of this

publication.

2 Regulation (EU) No 608/2013 of

the European Parliament and

of the Council of 12 June 2013,

concerning customs enforcement

of intellectual property rights and

repealing Council Regulation (EC)

No 1383/2003.

3 European Court of Justice, 1

December 2011, cases Nokia (C-

495/09) and Philips, (C-446/09). It

is noted that in legal proceedings,

the IPR holder will have to

evidence that there is a treat that

the goods will be put on the EU

market.

4 ‘Counterfeit goods’ are defined

in the APR as goods which are

the subject of (certain types

of) trademark infringement and

infringement of geographical

indications as further defined

in the APR. Furthermore, such

goods comprise packaging,

label sticker etc. infringing

a trademark or geographical

indication. 'Pirated goods’ means

goods that infringe a copyright or

a design right.

5 The IPR holder is, however, not

entitled to use this information

for other purposes than those

specified in article 21 of the APR,

including inter alia initiating

legal proceedings to determine

whether an IPR has been

infringed.

6 ‘Perishable goods’ are defined

in the APR as “goods considered

by customs authorities to

deteriorate by being kept for

up to 20 days from the date of

their suspension of release of

detention”.

About the author

Fleur Tuinzing-Westerhuis works as an IP lawyer at Houthoff Buruma,

one of the largest law firms in The Netherlands. Fleur specializes in

IP matters, with a focus on patents and plant variety rights. Fleur has

extensive experience in both patent litigation and litigation relating to

national and Community plant variety rights. In her daily practice, Fleur

represents domestic and international breeding companies that are

active in the Horticulture and Agrifood sectors. Over the past 10 years,

Fleur has litigated in various cases before the Dutch Courts, the Dutch

Board of Plant Varieties and the Office for Harmonization in the Internal

Market. Furthermore, Fleur assists clients in implementing customs

seizure actions based on the EU Anti-Piracy Regulation and advises on

license agreements.


Company profile

Invokat

The easy way of obtaining PBR in Turkey

Turkey, being a UPOV member state and admitting breeders´

rights applications for 266 different varieties, has a continuously

developing protection system in line with the directives of the EU. It

is now possible for the breeders to protect their varieties in an easy

way with lower costs.

Route 1: Varieties having existing DUS reports at the CPVO

This is the simplest and fastest way of obtaining PBR protection. Turkish

Ministry admits the DUS reports as if they were prepared in Turkey and

directly grants the PBRs after examining formal issues (denomination,

formal documents, translation of the DUS report etc.) and publication of the

application in the official bulletin.

Route 2: Varieties having no DUS report but claiming priority from an

application at the CPVO

A priority can be claimed from an application at the CPVO within 12

months, and in this case the Ministry waits for the outcome of the technical

examination until the end without the requirement of additional field tests and

technical examination. In this case, a technical questionnaire and translation

thereof need to be supplied to the Ministry.

DUS

The Ministry of Agriculture has very recently announced that DUS

report of an equivalent application for the same variety at the

CPVO shall be awaited in order to avoid repetition of the technical

examinations in Turkey, irrespective of the duration of technical

examination at the CPVO.

on a previous application at the CPVO has several advantages such as legal

certainty, accelerated procedure, and considerably low costs because the fees

for technical examination are not incurred. However, applicants are advised to

bear in mind that any negative report at the CPVO may have adverse effects on

the national application in Turkey.

As a further note, Routes 1 and 2 are available also for the varieties having

DUS reports obtained in UPOV states other than CPVO. But in this case, the

Ministry seeks the condition that technical examinations be carried out in

climate conditions similar to Turkey, otherwise repetition of the technical

examination on the national level is required.

Route 3: Varieties having no DUS report and not claiming priority but

having an equivalent application at the CPVO

The Turkish Ministry of Agriculture has very recently announced that, even

if a convention priority would not be claimed, a national application can

be interrelated with an equivalent application filed for the same variety at

the CPVO, in which case the Turkish Ministry waits for the outcome of the

technical examination, irrespective of the stage of the application at the CPVO.

In this case, a technical questionnaire and translation thereof as well as a

specific request to this effect need to be submitted to the Ministry.

Breeders can file applications within 4 years starting from the first

commercialization date, and in the case of trees or vines, within 6 years as

of the earliest date of commercialization abroad. Filing an application based

Invokat

Mr Aydin Mutlu

Agaoglu My Office 212, D: 241 Kat:14

Basin Ekspres Yolu, Tasocagi Cad.

No: 3 Bagcilar, 34218 Istanbul - Turkey

T +90 212 500 35 14

F +90 212 500 35 16

mutlu@invokat.com

www.invokat.com


From the Secretary General

Securing another

piece of the puzzle

Ciopora Chronicle sat down with CIOPORA Secretary General,

Dr. Edgar Krieger to learn more about the association’s future

challenges.

During the Annual General Meeting of CIOPORA in 2014 in The Hague, CIOPORA

members approved four IP Position Papers, on the Scope of Protection, Minimum

Distance, Breeders´ Exemption and Exhaustion.

CIOPORA Secretary General Dr Edgar Krieger.

What has been achieved in the recent AGM in Hamburg in April 2015?

Dr. Edgar Krieger: “During the AGM in Hamburg, the CIOPORA members placed another

piece of the puzzle, which deals with General Plant Breeders´ Rights Matters.”

What is this about?

“This paper is a comprehensive paper which contains the CIOPORA positions on matters such as

genera and species to be protected, the process of application and granting, conditions for protection

(e.g. novelty), DUS examinations, ownership of plants, DUS reports and DNA samples and

analyses, the composition and use of variety denominations, compulsory licenses, duration and

cost of protection, provisional protection and the enforcement of PBR and its cost.”

This sounds like a mixture of many things…

“Yes, the paper covers a variety of topics which are important for breeders but do not require a

single paper for each.”

Dr Krieger, can you highlight some of the topics in the paper?

“The paper has 11 pages, so I can give you only a limited selection of some important points.

For example, in reference to Novelty, the triggering point for the start of the grace period should

be linked to the physical transfer of propagating material for commercial purposes as opposed

to the ‘sale’ of this material in order to avoid confusion due to different legal understandings of

the term ‘sale’. CIOPORA also supports the development of harmonized application forms and

technical questionnaires and the set-up of technical tools for electronic applications, including

a harmonized language regime. The ultimate objective should be an optional system which

would allow breeders to apply for their new variety on one application form (electronically) and

choose the countries in which the application shall be accomplished. This should be combined

with a DUS examination for the variety in a competent examination office and the take-over of

the test report in the countries chosen. CIOPORA also requires that the provisional protection

be strengthened. That means that, in order to create a real incentive for breeders to launch their

innovation at an early stage, the breeder of the new variety must be in the position to control

the exploitation of his variety, i.e. to grant licenses and to stop ‘infringers’ even before the

protection title is granted. CIOPORA is also of the opinion that the use of the variety denomination

should not only be obligatory in relation to propagating material but also in relation to

harvested material. This is already the case for many species of fruits because of the marketing

rules. Finally, CIOPORA made a list of enforcement measures, which should be provided for by

national legislation in order to allow effective enforcement of breeders´ rights.”

What is left on the agenda of CIOPORA?

“In the coming months we will continue to discuss, in particular, the matter of Essentially

Derived Varieties (EDV) and Patents for Plant Innovations, and hope to be able to approve these

papers during the next AGM in Istanbul, the last week of April 2016.” |||

CIOPORA Chronicle June 2015 | www.FloraCultureInternational.com 21

Marketing Research

Millennials, or

‘Gen Y’, are terms

used to describe

young adults born

between 1980 and

1997. Is a rose is a

rose is a rose… for

millennials?

For millennials, a rose is definitely still a rose.

Gen Y consumers:

flower purchasing

behavior and social media

by Prof. Dr. Tracy A. Irani

Today, there are over 80 million

‘Gen Y’ consumers in

the U.S., which represents

the largest demographic of consumers.

‘Gen Y’ is fundamentally

different than other consumers –

especially when it comes to buying

flowers.

The Typical Flower

Buyer vs. The Next

Generation

The typical flower customer is 35+

years old, female, with mid-tohigh

income. In a 2009 Society

of American Florists’ (SAF) study

comparing Gen Y to Baby Boomers

(1946-1964) and Gen X (1965-

1980) consumers, results indicated

that Gen Y consumers are less

likely to have a high appreciation

of flowers or to connect flowers

with positive emotions. In short,

Gen Y consumers do not identify

as much with flowers as previous

generations, which presents a challenge

to the industry.

Purchase decisions

Catering to changing consumer

tastes and purchase patterns is

important in marketing, and doing

so effectively requires insight

into target consumers’ needs and

wants. Gen Y consumers, the most

social, technologically-advanced,

and connected of consumers, are

also the only recent generation to

consider themselves less successful

than their parents. Having

lived through a severe economic

downturn, they are more likely to

be unemployed or under employed.

Because of these challenges, Gen Y

consumers think differently about

how they spend and what they

value. There is a need to examine

this audience segment, not only

About the author

Dr. Tracy Irani is the Chair of the

Department of Family, Youth and

Community Sciences. She holds the

rank of Professor in the College of

Agricultural and Life Sciences. She

is a nationally recognized social scientist

in the areas of public understanding

of science and technology,

crisis and risk communication, and

public opinion issues analysis.


in terms of buying trends but also

with respect to what factors influence

these purchase decisions.

Uncovering ‘Gen Y’s

floral preferences

Our team of researchers decided

to address this need by conducting

a study of the floral fragrance and

color preferences of young adult

consumers. We wanted to know

what combinations of flower color

and fragrance were most appealing

to Gen Y consumers. We also

wanted to know if young adult

consumers would respond to novel

combinations of fragrance and

scent.

Novelty is used as a way to attract

consumer attention in marketing,

and breeding techniques have

advanced to the point where it is

technically possible to breed novel

flowers with unexpected scents.

Would Gen Y be drawn to a red

flower with a citrusy scent, for

example, because it was novel and

unexpected?

Finally, we wanted to find out what

Gen Y consumers thought about

social marketing of flowers and

how social marketing strategies

might be adapted for this audience.

To complete this project, two experimental

studies were conducted.

Eighty-six subjects participated

in the first study and 121 in the

second.

Fragrance and colour

In the first experiment, we asked

consumers to smell a series of four

flower fragrances — sweet, spicy,

rosy and citrusy — which were

derived from natural flower scents.

Subjects were then asked to choose

which of the four fragrances they

preferred, as well as their preferred

color from a list of most-commonly

available choices — red, pink,

yellow, purple, white, green and

blue. Next, subjects were asked

to select their preference from 20

‘most-preferred combinations’ of

fragrance and color.

In the second experiment, we chose

the five most and least preferred

fragrance and color combinations

from the previous experiment, then

asked our subjects to smell them

and indicate a favorite.

This project was

made possible by

a grant from the

American Floral

Endowment,

http://endowment.

org/grants/

See full report:

Not Your

Grandmother’s

Flowers: What

Combination of

Flower Fragrance

and Color is

Preferred by

Young Adult

Consumers?

Report #709 (2011)

by Tracy A. Irani,

Dave Clark, Becky

Raulerson, Deidra

Slough, University

of Florida,

Gainesville

Overall, young

adult consumers

preferred the

fragrance + color

combination that

they associated

with the expected

flower stimulus

used – which was

a rose.

Results of the two studies showed

that fragrance and color are very

important to Gen Y consumers

when considering flower purchases.

Sixty-six percent of Gen Y

subjects had a fragrance preference

for flowers, with the highest

percentage of consumers preferring

a sweet fragrance. Seventy-nine

percent of subjects had a color

preference, with red or pink as top

choices. When color and fragrance

combinations were joined, subjects

were most likely to purchase the

rosy + red combination, and least

likely to purchase a white flower

with no scent. Overall, young adult

consumers preferred the fragrance

+ color combination that they

associated with the expected flower

stimulus used – which was a rose.

Social media

strategies for millennial

consumers

Next, our study looked at Gen

Y consumers’ perceptions of

Facebook, the social media tool

most widely used by retailers as

an avenue to market flowers. The

study found that Gen Y consumers

would be unlikely to purchase

flowers from a retailer solely based

on Facebook presence. The great

majority, 98%, did not “Like” any

major flower retailers on Facebook,

and a similar percentage had not

joined any retailers’ Facebook

groups.

Gen Y consumers felt retailers

using Facebook should include

information on price, promotions,

and shipping, as well as the variety

of flowers and scents available for

purchase. Additionally, although

almost 27% said they would be

likely to shop for flowers online

using a web link, most were either

undecided or unlikely to do so.

The results of the study correspond

to what is known about social media

marketing and young adults.

Gen Y users tend to value social

engagement and are less inclined to

respond to direct sales solicitations

via social marketing. To better

reach Gen Y consumers, floral

companies should integrate social

media with traditional media and

provide value-added, consumerrelationship

building content via

blogs, ‘how-to’ videos, promotions

and events. Because connecting

with consumers is important to

Gen Y, testimonials and vignettes

are also a good addition to social

mediums.

Based on the results of the study,

social media cannot be the only

tool in marketing to Gen Y

consumers. Just as these consumers

chose the ‘expected’ flower

+ fragrance combination, their

expectations of social media are

focused more on networking and

entertainment than retail sales.

For millennials, a rose is definitely

still a rose. |||


Zooming in

Ciopora Chronicle

sat down with

Mr. Stephan Hertz,

co-founder of

Miniatur Wunderland

in Hamburg, the

largest model

railway in the world

and one of the

most successful

permanent

exhibitions in

Europe.

by Anna Kaehne

The Superlative of Miniature:

Our search for inspirational

stories of innovation brings

us back to our home

harbor, the city of Hamburg, where

a group of visionary minds dreamed

up an entirely new world. But unlike

many fantasy worlds created

by minds of writers and artists, this

vast miniature universe lacks any

kind of escapism. It is a superlative

mini-version of the human realm

where both ordinary and extraordinary

co-exists side by side and all

manifestations of human activity

receive an equal tribute.

Ciopora Chronicle: Mr

Hertz, currently at Miniatur

Wunderland your 13 km

long model railway spreads

over 1.300 m 2 , exhibits eight

thematic sections, including

a true-to-life model of

international airport, and

attracts over 10 million

visitors per year. And yet this

monumental work is a result of

a single mind spark. Could you

tell us what happened in 2000?

Stephan Hertz: “In July 2000, my

partner Frederik Braun was visiting

Zurich. There he came across a

railway model shop, which at once

brought back some good childhood

memories. The idea of realizing

a long forgotten dream promptly

matured. On the very same day

he called his twin brother Gerrit

knocking him down with the

following words: ‘We are going to

build the largest model railway in

the world’.

Gerrit, more sceptical by nature,

first questioned Frederik‘s state of

mind and didn’t take the idea too

seriously. However, after six more

calls from Frederik on the same

day, Gerrit realized that his brother

was indeed very serious about his

project. The idea of earning a living

with their former hobby inspired

him as well.”

Back in 2000, who was your

target customer?

“During our initial brainstorming,

hundreds of ideas were generated.

The general concept was creating an

experience for the entire family. We

didn‘t want a sterile exhibit behind

a glass pane, but a complete model

of the real world, where the fully

functional railroad is only one of

the many more highlights. The idea

was to create a world which equally

inspires men, women and children

to dream and marvel. Our visitors

of all demographics are able to find

something to identify with in our

exhibition.”

The world you have jointly

created with your partners

replicates the real world at

1:87 scale. Can this scale be

also applied to the technical

side of the development

process?

“In fact, the small scale presents,

more often than not, the biggest

challenge. But our team always

comes up with creative ideas, many

of which we manage to realize. Only

the elaborate creative process allows

us to craft true-to-life scenes, such as

e.g. our fitness center where, thanks

to the innovative use of magnets, a

handful of figurines can enjoy their

daily work-out.”

In terms of innovation and

technology, in which parts

of exhibition have you so far

achieved the most prominent

breakthrough?

“All our projects are dear to my

heart, but if I need to pick just a few,

I would name our Knuffingen Airport,

where we managed to establish

live air traffic with airplane models

in the scale of 1:100; our real water

basin in Scandinavia, which we

manage to keep algae-free and which

is frequented by our large ships. For

the precise navigation of ships we

had to come up with an entirely new

approach to the navigation technology,

which many experts of the

real-life naval navigation considered

impossible. The biggest challenge

for us was the manoeuvring, which

in our miniature world required a

precision of 1 mm. Initially, we tried

using the infra-red camera surveillance,

but due to multiple problems

we dismissed it after 15.000 lines of

source code had been written. Then

we focused on the use of ultrasonic

devices and managed to prove that

by using 8 measurements per second


a brand new small world

the required precision could be

achieved. Simultaneously, an

infrared laser system with an

accuracy of about 0.6 mm was

developed. The current software

for the ship manoeuvring accounts

for 75.000 lines of source code.”

Could you tell us more about

the process of conquering

the sky at your very own

Knuffingen Airport?

“From the moment of founding of

Miniatur Wunderland it was clear

to us that we wanted to portray

each and every type of mobility,

so the decision to build an airport

came naturally. The construction

took about six years from June 2005

to May 2011. We spent the total

of €3.5 million on the project and

82 team members were involved in

creation of our masterpiece.”

It sounds like at no instance

the construction of the

miniature world is less of a

task than the same activity

in the real life. Experts from

what professional fields do you

require for the development of

the exhibition?

“We need everyone, regardless of

the background! From craftsmen

and carpenters to artists, designers,

professional model builders,

electricians, IT professionals and

simply enthusiasts. The most

important thing is that our staff

loves what they do.”

And the last, but not least:

Miniatur Wunderland has

stated on record that its

success might be partly based

on its “non-commercial”

character, in other words,

on ‘irrational conduct as a

success factor’ (4365 Days of

Wunderland 2012:116). Could

you please explain what

exactly this statement means

to you?

“We currently employ 350 staff

members. Miniatur Wunderland

relies on the human factor. Business

consultants would probably

insist that only a half of this staff

could manage to create the same

amount of trees, buildings, figurines

and trains, but this would

strip Wunderland off its “Wonderland”

factor. We want to provide

our team with freedom to create

the layout they envision, even at

cost of time. And this is exactly

what our visitors perceive when

they discover all the affectionately

crafted details, even in the

remotest corners of our miniature

world.” |||

About the author

Miniatur Wunderland’s

co-founder Stephan Hertz.

The world’s

smallest garden

Inspired by the International Federal Garden

Show, which took place in Hamburg in 2013, the

team of Miniatur Wunderland decided to create

their own smallest garden of the world. The

result: 0,0003 ha exposition, which playfully and

symbolically reproduces the processes involved

in creation of a real-life garden. CIOPORA innovative

plant breeders, like no one else, can

appreciate the meticulous work invested in

creation of this wonderful miniature plant scenery.

The cover picture of the CIOPORA Chronicle

was taken in the “smallest-largest” garden of

the world at Miniatur Wunderland Hamburg.

Chronicle cover 2015 by Evgeny Makarov.

MINIATUR WUNDERLAND GARDEN QUICK FACTS

Area: 3 m 2

5.500 working hours

Budget: €170.000

150.000 of hand-crafted flowers, including 17.800

roses, 22.800 dahlias and 43.900 summer flowers,

and 140 trees created by 20 employees and many

volunteers. CIOPORA thanks the team of Miniatur

Wunderland Hamburg for their kind cooperation.

Anna Kaehne worked at CIOPORA Office until May 1 st 2015. At CIOPORA she was responsible for association’s

internal and external communications including the relations with press, production of media and marketing

materials offline as well as online. She was the person behind the association’s newsletter, press releases, website

and other communication projects. Anna holds a Magister Degree in English and Slavic Studies from the University

of Magdeburg. In her homeland - Ukraine - she studied International Law.


Business Management

Last November,

2014, CIOPORA

communicated to

its membership, and

then to the public,

that a draft new

Code of Conduct

had been developed

in Kenya under the

coordination of

the Kenya Flower

Council (KFC).

by Bruno Etavard

New Code of Conduct

in Kenyan flower industry

This draft new Code for

the horticultural industry

specifies the legal compliance

requirements for the responsible and

safe production of cut flowers and

ornamental horticultural products

throughout Kenya. The Code also applies

to the procurement of inputs and

market placement of cut flowers and

ornamental horticultural products.

Guidelines

This draft new Code is intended to

set guidelines for the entire horticulture

industry supply chain in Kenya.

In short – it cannot be ignored. Although

the Code does not refer only

to Intellectual Property (IP) matters

and does not fall directly within

the scope of CIOPORA and IRBA,

CIOPORA’s Cut-Rose Crop Section,

both associations are invested in the

practical consequences of the Code

and are committed to voicing their

comments.

Kenya is a major market for both

CIOPORA and IRBA members,

both in terms of exploitation of

intellectual property titles and also

as a country where breeders enjoy a

quality relationship with the local

authorities and share common hope

for the successful development of the

horticulture industry in Kenya.

The latest version of the draft new

Code has been submitted to the

Kenya Bureau of Standards in

order to ensure that the structure of

the document fulfils international

standards.

From March 20 to May 19, 2015,

the Code was available for public

review and for further comments.

During this time, CIOPORA

submitted comments on behalf of

its members to the Kenya Bureau of

Standards.

bers were informed that revisions

were to be made on the Code.

Over the past year, a number

of meetings have occurred in

Kenya regarding the new Code.

Designated IRBA representatives

located in Kenya were invited

to participate in these meetings

and contribute proposals for the

preliminary text. In August 2014,

a first complete draft of the new

Code became available with some

points open for further discussion.

Between August and December

2014, CIOPORA and IRBA communicated

their concerns regarding

the Code to the KFC.

Highlights for

plant breeders and

propagators

The new Code is intended to

include all players in the industry

including, but not limited to,

growers, propagators, breeders,

consolidators, shippers and cargo

handlers, with the aim of enforcing

existing international codes

A revision process

throughout 2014

The current Code of Conduct has

been in existence since 2004. In

early 2014, CIOPORA/IRBA memfor

proper agricultural and horticultural

practices and guidelines.

In particular, it is important

that the new Code very clearly

distinguishes between “breeders”

and “propagators”, as the mix of

breeder and propagator may create

confusion since each have different

functions within the added-value

chain.

In regards to IP matters, the draft

new Code mentions the existence

of the Kenyan Plant Breeder’s

Rights and that all players in the

industry must comply with these

rights. This is good step forward

for the entire industry as continued

innovation in horticulture is key

for continued future success.

Proper horticultural practice

requires that the IP is respected

by all.

Parallel to the revision of the Code,

one can also advocate for enforcement

tools to be strengthened for

the benefit of all fair players in the

industry, as is provided for in many

other countries.


Avoiding pests

and diseases

As a direct consequence of the

draft new Code, it is imperative

that all actors and/or links in the

production chain understand that,

through the new Code, there will

be an overall responsibility by all

links to control and avoid diseases

and pests. This is seen as the core

of the new draft Code and implies

that ALL parties involved in the

supply and production of horticultural

produce must be registered

with Kenya’s phytosanitary services,

KEPHIS, and comply with relevant

documentation requirements.

Accordingly, on a day-to-day basis,

breeders and propagators must keep

accurate records that demonstrate

the source of the propagating material

supplied by them.

As a direct consequence, it appears

in the draft new Code that responsibility

of planting material is being

highlighted and the onus is being

put on breeders and propagators to

supply stock that is free from pests

and diseases.

A guarantee policy, including plant

health assurance, is foreseen in

compliance with the Plant Protection

Act, Cap 324 of the laws of

Kenya and the International Plant

Protection Convention (IPPC).

This policy states that all parties

should ensure that the transfer of

plant material avoids the transfer

of pest and disease. Accordingly,

the draft new Code mentions that

buyer-seller contracts of plant material

should describe the compensation

terms and conditions of pest

and disease traceable to the breeder

material.

Regarding the liability for pests and

diseases, CIOPORA is confident

that it is not the intention to unreasonably

expand such liability to

About the author

sdfvdx wedsfvedc

breeders, when such breeders are not

involved in the production and trade

of propagating material. CIOPORA

advocated that these be addressed at

a later stage, when needed.

Next steps

The Kenya Bureau of Standards

made the final version of the Code

available to the public on May 19,

2015. CIOPORA and IRBA took

this opportunity to submit their

standpoint to the Kenyan Authorities.

CIOPORA will also meet with

these authorities and continue the

dialogue.

Because of the importance of Kenya,

both as a hotspot for the exploitation

of Intellectual Property titles and a

country where breeders enjoy quality

relationships with local authorities, it

is imperative that CIOPORA and its

members contribute to the development

of the new draft Kenyan Code

of Practice and the development of

all parties’ activities. |||

About the author

Bruno Etavard is CIOPORA Board Member

representing Meilland International. Bruno has

been active in the field of plant breeding since

1982. In 1988, he joined Meilland International,

one of the world’s leading rose breeding

companies, as a license manager. He has been

IRBA (the International Rose Breeder Association)

member since 1988 and currently serves as the

association's vice-chair.


IP in the World

The Agricultural

Growth Act is

designed to

modernize Canada's

federal agriculture

legislation

and encourage

innovation in the

sector. Among

the key changes

implemented

through this

legislation are

amendments

to the Plant

Breeders' Rights

Act (PBR Act) to

encourage increased

investment in

plant breeding in

Canada and foster

greater accessibility

to foreign seed

varieties for farmers.

by Anthony Parker

Canada amends its Plant

Breeders´ Rights Act to

conform to UPOV’91

February 25 th , 2015, marks an

important date for Canada’s

agriculture, horticulture and

ornamental sectors. On that day,

the Agricultural Growth Act, a

statute modernizing nine pieces of

federal legislation, received royal

assent, and a few days later on February

27 th , 2015, these amendments

came into force, becoming the

law of the land. Among the more

notable changes introduced were

amendments to the Plant Breeders´

Rights Act (PBR Act) to bring it

into conformity with the 1991 Act

of the International Convention for

the Protection of New Varieties of

Plants (UPOV’91).

Amendments

point-by-point

Changes to the PBR Act include all

the compulsory UPOV’91 articles

and will strengthen the rights of

breeders and improve accessibility

to the intellectual property framework

by:

• extending plant breeders rights

beyond sale of propagating material

and the production of propagating

material intended for sale,

to include reproduction, import,

export, conditioning (clean, treat),

and stocking for the commercial

purposes of propagating;

• allowing plant breeders to sell a

variety in Canada for up to one

year before applying for PBR protection

in order to test the market,

advertise, or to increase stock;

• providing automatic provisional

protection for a new plant variety

from the date of filing, which

would allow applicants to exercise

their rights while applications are

pending "grant of rights" (however

no legal action in respect of provisional

protection could be initiated

until after the rights are granted);

Plant Breeders´ Rights gave Canada’s potato producers

access to internationally developed varieties.

• extending the protection period

from the current 18 years to 25

years (for trees, vines or any specified

categories) and 20 years for

all other crops, unless the breeder

surrenders their rights earlier;

• ensuring that, if a breeder is

denied a reasonable opportunity

to collect royalties on the sale

of propagating material (e.g.

cases where it is stolen or illicitly

shared), he/she may exercise rights

on the harvested material (e.g.

grain).

Breeders´exemption

Of course, the amendments also

include the mandatory benefit

Hibiscus trials


sharing provisions of UPOV’91.

Namely: the “breeders´ exemption”

which allows unrestricted access to

protected varieties for the purpose

of breeding other, new varieties;

the “researchers’ exemption”,

which provides unrestricted access

to protected varieties for experimentation

and scientific investigation;

and finally, the “private/noncommercial

exemption” which

permits the propagation of protected

varieties by home gardeners,

hobbyists, subsistence farmers, etc.

Canada has also elected to include

the optional “farmers’ privilege” in

the suite of amendments, explicitly

permitting farmers to continue

saving, conditioning (clean, treat,

etc.), and storing seeds of protected

plant varieties for replanting on

their own land.

Public consultations

The Government of Canada has a

strong tradition of consulting with

the impacted stakeholder community

before making changes to

the Intellectual Property framework

for protecting new plant

varieties. In fact, Canada’s original

decision to enact a PBR law, based

on UPOV’78, was the result of

strong support from farmers and

plant breeders alike. In 2004/05

the PBR Office conducted national

consultations on the possible adoption

of UPOV’91. The outcome

of these consultations was that

impacted stakeholders were in

favor of improving our Intellectual

Property framework. Since tabling

of Bill C-18, the Agricultural

Growth Act, in Parliament on

December 7 th , 2013, I had the personal

pleasure of conducting over

35 individual consultations with

various organizations representing

the agriculture, horticulture, and

ornamental sectors. These more

recent consultations reconfirmed

what we had observed almost a

decade earlier, that the stakeholder

community, both domestically and

internationally, strongly supported

Canada’s move towards ratifying

the UPOV’91 standard.

Endorsement of

the industry

In fact, a coalition of Canadian

farmer and value

chain organizations called

“Partners in Innovation”

(www.partnersininnovation.ca)

formed specifically to encourage

and support the federal government

in adopting UPOV’91. This organization

is comprised of a diverse

group of over 20 organizations,

representing producers of grains,

oilseeds, pulse crops, fruit crops,

potatoes, and flowers, encompassing

the vast majority of Canadian

agriculture and horticulture.

Overseas, organizations such as

the International Community of

Breeders of Asexually Reproduced

Ornamental and Fruit Varieties

(CIOPORA), the International Seed

Federation (ISF), and the International

Association of Horticulture

Producers (AIPH), have also

been strong and vocal proponents

Mum varieties

protected under

Canadian Plant

Breeders´ Rights.

Some plants

are reproduced

vegetatively

from plant

cuttings or

budwood. This

includes many

ornamental

plants, such

as roses and

spirea, and

most fruit, such

as apples and

strawberries.

of UPOV’91 amendments to

Canada’s PBR Act.

Beneficiaries

By amending its legislation,

Canada has listened and

responded to the needs of its

stakeholders and fulfilled a commitment

made in 1992 when

we became a signatory to the

UPOV’91 Convention. Updating

Canada’s PBR Act will stimulate

innovation in domestic plant

breeding and encourage foreign

breeders to release their varieties

into our marketplace. In fact,

the ink is barely dry on the law

and we have already witnessed

increased investments and new

partnerships form between Canadian

seed companies and foreign

breeders. In the end, Canadian

farmers and growers will be the

beneficiaries of these changes.

Securing access to a greater diversity

of high yielding and diseaseresistant

varieties will help

Canadian farmers meet market

demands and remain competitive

internationally. We are pleased

to have reached this important

milestone, and look forward to

continued collaboration with the

stakeholder community to fully

realize the advantages of moving

to UPOV’91. |||

About the author

Anthony Parker is Commissioner of the Canadian

Plant Breeders' Rights Office (PBRO) which is part

of the Canadian Food Inspection Agency (CFIA).

CFIA administers the Plant Breeders' Rights

Act (1990) and Regulations which provide legal

protection to new plant varieties.


IP in the World

Turkish PBR Law

that has been in

force since January

2004 fully complies

with the 1991

Act of the UPOV

Convention. Turkey

became the 65 th

member of the

UPOV Convention

on November 18,

2007, making PBR a

relatively new field

of IP in Turkey.

by Ersin Dereligil

and Yeşim Metin

About the authors

Ersin Dereligil and Yeşim Metin

work for Destek Patent, Turkey.

Recent changes in the

Turkish PBR practice

Plant Breeders´ Rights (PBR),

also known as Plant Variety

Rights (PVR), are rights used

to protect new plant varieties that

are distinct, uniform and stable.

Plant varieties are protected by

Turkish PBR Law No. 5042 in

combination with the implementation

regulation and the national

plant variety list, including the list

of plant species eligible for PBR

protection.

A body of the Ministry of Food,

Agriculture and Livestock, the

General Directorate of Crop

Production and Development

(BUGEM) is the authority

handling the PBR applications

in Turkey, whereas the Variety

Registration & Seed Certification

Centre (TTSM) is responsible for

DUS examinations.

Novelty

A plant variety shall be deemed

novel if it has not been commercialized

for four years abroad or for

one year on the territory of Turkey

prior to the national application.

The same four-year (six years for

trees and vines) requirement holds

for plant varieties for which PBR

applications has been filed abroad.

In order to comply with the novelty

requirement, we strongly advise

foreign plant breeders to first file a

PBR application abroad and later

proceed with the application for

the variety registration in Turkey. If

a variety is applied for registration

in Turkey and exceeds one year, it

will not be possible for this variety

to later have PBR protection in

Turkey due to lack of novelty.

Unfortunately, we have recently

seen several cases where PBR applications

filed by foreign breeders

were rejected by the PBR office.

Although these applications were

duly filed within the novelty

period of 4/6 years, the breeders

disregarded their earlier Turkish

PBR applications filed either by

themselves or by their distributors.

Take advantage of

priority rights

The priority term is one year from

the earliest PBR application date.

It is always beneficial for a PBR

application to take advantage of

the priority right in Turkey. Since

the results of the foreign DUS examination

can be taken over by the

Turkish DUS examination authority

TTSM, it is recommended to

file a Turkish PBR application with

a priority claim, i.e. from CPVO, in

order to avoid an additional DUS

test and to save examination costs.

Recent changes in

Turkish PVP

The PBR application procedure

strictly depends on whether a DUS

test has been completed by a foreign

authority prior to the filing date in

Turkey. Prior to the latest changes

of the regulation of December 31,

2014, it had not been possible to file

and suspend procedures for a Turkish

PBR by making reference to a

preceding foreign application with

a pending DUS test. At present, it

is possible to file for a PBR without

a DUS report and to delay the

Rosa Isparta City.

procedures until the tests are completed

by the foreign test authority

and thus to avoid repeating the

DUS examination. It is important

to note here that the “prior/earlier”

application must be filed in one of

the UPOV member states within the

novelty period and the document

proof thereof along with a copy of

the Technical Questionnaire (TQ)

should be included while filing a

PBR application to the BUGEM.

Hence, the application will be assigned

the pending status (as in case

of applications with priority claim

mentioned above) until the foreign

DUS report has been completed

and can be submitted to the Turkish

authorities.

The National List of

Plant Varieties

The Turkish PBR Office is continuously

working on expansion of

the national list of plant varieties

eligible for Plant Variety Protection.

The list was updated in 2009, 2011

and 2014. As a result of the latest

update, Cynara cardunculus and

Phalaenopsis were included and can

now be protected by the national

PBR. A total of 256 plant varieties

are currently eligible for PBR

protection in Turkey. |||


IP in the World

The Russian

Federation has been

a member of UPOV

since April 24,

1998. Although the

current Russian PBR

legislation presented

in Chapter 73 of Part

4 of the Russian Civil

Codex corresponds

to the minimum

requirements of the

1991 Act of UPOV,

it contains a number

of specific features.

by Juriy A. Rogovskiy

Plant Variety Protection

in Russian Federation

For instance, the purview of

the law extends to both plant

and animal breeders´ rights,

whereas the plant breeders´ title is

referred to as “a patent on selection

attainment”. The duration of

protection set by the Russian Civil

Codex amounts for 30 years for

all species except vines, tree, fruit

and forest plants, which enjoy a

prolonged period of protection of

35 years.

The patent is issued to either a physical

person – the actual breeder – or

to the employer thereof, in cases

where plant breeding was executed

as a part of the job responsibilities.

In order to be registered, a plant variety

must be distinct, uniform and

stable (DUS). Once the application

for variety registration is filed,

the variety enjoys the provisional

protection. The main requirements

of variety denominations as well as

the provisions of the Russian Civil

Codex guaranteeing the exclusive

character of the breeder’s right

fully correspond to the 1991 UPOV

Standard. The latter implies that

the plant material produced without

a proper authorization by the

title holder, falls under the scope of

the breeder’s right.

PBR application and

registration procedure

An application for a Russian PBR

can be filed for one plant variety at

a time by one or several applicants

as well as by his/their legal representative.

The applicants should

provide a formal application for the

patent on selection attainment, a

plant variety description form, an

application fee payment receipt or

an application for the discount of

the fee. All documents should be

provided in Russian or include the

official translations. It is required

that, while dealing with the Russian

governmental authorities,

foreign citizens and companies

DUS tests

The DUS tests in the Russian

Federation are run in accordance

with the UPOV guidelines. Apart

from running its own DUS tests,

Gossortkomissiya practices the

take-over of the DUS test results

from the competent organs of the

UPOV member states. The DUS

tests are conducted for both: applications

for patents on selection

attainments and applications for

inclusion of plant varieties into the

National register of plants admitted

for use. Once it is determined that

the plant variety corresponds to the

DUS requirements, Gossortkomissiya

draws up the official descripare

represented by the authorized

agents with the seat on the territory

of the Russian Federation.

Preliminary application

The preliminary application check

is undertaken within one month

from the filing date. During this

procedure Gossortkomissiya

defines the priority date, runs the

evaluation of the proposed variety

denomination and reviews the provided

documents. Gossortkomissiya

maintains the right to request

additional or lacking documents,

which must be provided by the

applicant within the defined term.

A successful preliminary check

results in notification of the applicant

along with the clarification

of the further fees, which needs

to be covered to proceed with the

DUS test.


tion of the variety, includes the

variety into the State register of

protected plant varieties and issues

a publication about the grant of

the title in the Official bulletin,

on its website and in the UPOV

database.

Authors versus

title holders

The Russian PBR registration

procedure foresees the issue of

the authorship certificate along

with the grant of the PBR title. In

cases where the author (breeder)

and the patent applicant are not

the same physical or legal entity,

the name(s) of author(s) must be

indicated in the application form.

According to provisions of the

Russian Civil Law, the author of

the variety is entitled to remuneration

by the patent holder during

the entire period of protection,

whereas his total yearly reward

should amount to not less than

2% of the title holder’s annual income

generated by his exploitation

of the plant variety in question.

The title holder is responsible for

maintaining the plant variety during

the entire period of protection.

License agreements

and right transfer

A title holder can grant a right

to undertake actions in regard of

the plant material of his variety

to others by means of a license

agreement. In case of grant of a

sole license, the licensee receives

an exclusive right to exploit a

variety in question, whereas the

parties are free to contractually

define which actions in regard to

the plant material of the variety

can be still undertaken by the

licensor. On the contrary, an

ordinary license does not limit the

licensor in actions in regard to the

plant material of his variety and he

maintains the right to issue further

licenses to third parties. In some

cases the title holder can announce

the issue of an open license, which

basically allows everyone who

pays the fee and notifies the title

holder to exploit the plant variety.

In some cases the Civil Codex of

Russian Federation also foresees

the issue of compulsory license.

Registration in the

National register of

plants admitted for use

All plant varieties commercialized

on the territory of the Russian

Federation should be registered

in the National register of plants

admitted for use. In order to

comply with the deadlines of the

next examination season, the

application for inclusion in this

register should be filed before

January 15 for winter grains, vines

and fruit species and not later than

December 1 for all other species.

Such examinations are aimed at

evaluation of serviceability of plant

varieties. Depending on genus and

species in question (Lists “A”, “Б”

& “В”), growing trials, laboratory

and phytopathology tests, as well

as expert evaluation can be a part

of the examination process. These

measures are carried out by the regional

centers of Gossortkomissiya.

The serviceability of plant varieties

is defined by their productivity,

disease and pest resistance, quality

of produce and other economic

and biological characteristics, for

which certain standards are set by

the government. The results of the

serviceability tests are reviewed in

the regular crop expert meetings.

Russian PBR in figures

In 2014 Gossortkomissiya received

the total of 740 PBR applications.

The applications by foreign

breeders amounted for 25% (184

applications) of the total and originated

from 16 different countries,

including Germany (20), the

Netherlands (38), USA (55), and

France (26).

Currently, there are 4.134 patents

on selection attainment in force

on the territory of the Russian

Federation. As for the National

register of plants admitted for use,

Gossortkomissiya received a total

of 2.306 applications, including

1.018 (44%) applications from

abroad. As of February 12, 2015,

the National register of plants

admitted for use contained 17.862

plant varieties. |||

For more information

contact Gossortkomissiya at

gossort@gossort.com or visit its

official website: www.gossort.com.

The Russian delegation meets UPOV’s

Vice-Secretary General Peter Button.

Pictured left is Juriy A. Rogovskiy.

About the author

Juriy A. Rogovskiy is Deputy Director at Gossortkomissiya (Russian PVR Office).


Production and Trade

Over the last 30

years Ecuadorian

floriculture has

grown significantly

as an important

supplier in the global

cut flower market.

The increases have

been steady in both

quantity and quality

for the import

markets.

Ecuador grows more than 300

varieties of roses, which are known

especially by length of the stems

(sometimes more than 1 meter), and

the size of the bloom (probably the

largest in the world), and the bright

and beautiful colours of their petals.

Latitude and longitude,

altitude and attitude

by Alejandro Martínez

About the author

Alejandro Martínez is

President of Expoflores.

For this article I am using

a title from a presentation

by Dean Rule because it

expresses precisely what our activity

in Ecuador towards the market

really means. I have been involved

with this marvelous sector for

three years now, and one of the

most impressive things I have seen

was the Ecuadorian cut flower

industry’s attitude towards problem

solving. The crisis of the Russian

market and the revaluation of the

US dollar have presented serious

problems for the entire sector in

terms of falling-off in demand and,

thereby, overflow in supply.

Turbulent market

A few months ago Expoflores held

a meeting with 205 growers in

attendance. As an association, we

have been continuously working

with the Government in order to

achieve a number of incentives that

can help our industry overcome the

turbulent market. What impressed

me the most was that after we had

explained what was being discussed

with the Government, many growers

started raising their hands and

sharing their ideas on how all of us

can help each other and work to-

gether to become more efficient and

face the problems no matter what

the Government could implement.

From the vast amount of ideas

expressed, three were picked and

have been implemented by us over

the period of the last two months,

Ecuador has the longitude and the altitude to produce great flowers, especially roses.


Over the last 30 years Ecuadorian floriculture has grown

significantly as an important supplier in the global cut

flower market.

and we are currently expecting to

see some first effective outcomes

towards the beginning of the fourth

quarter of 2015.

Free trade agreement

In November 2014, the EU and

Ecuador finalized the negotiations

of a free trade agreement. For both

parties the agreement marked an

important step forward in terms of

commerce, investment, entrepreneurship

and market development.

This is fantastic news for the Ecuadorian

floriculture. Europe receives

Over the

last 30 years

Ecuadorian

floriculture

has grown

significantly as

an important

supplier in

the global cut

flower market.

23% of our total exports (value)

and 19% of the total volume. There

is still an enormous potential for

growth in this important market

and I believe that signing the free

trade agreement will help us meet

this goal. The negotiation was

completed in short time period

with minor setbacks in certain areas

(as was to be expected) but with the

adequate result.

Long term relationships

CIOPORA and Expoflores worked

together on solving some important

issues regarding Intellectual Property

rights. CIOPORA provided

the EU Commission with all the

necessary background information

and we did the same with

the Ecuadorian Government. The

agreement is expected to come into

force between the third and fourth

quarter of 2016. It will provide

stability to both plant breeders and

growers, strengthening the ties between

them. We must understand

that moving all export products

from Ecuador to the EU from the

SGP+ to the free trade agreement

will motivate exporters and importers

to foster long term commercial

relationships and develop mid and

long term market strategies.

Environmentally friendly

floriculture

The current annual value of Ecuadorian

exports to the EU amounts

for 1.8 billion USD, with main

products being shrimp, bananas

and tuna. It is expected that the

total growth will reach a 7% yearly

increase. The current devaluation

of Euro will probably slow down

this growth rate. However, we see a

recovery in the EU economy that is

expected to boost the value of Euro

in the global market and hence positively

influence our exports to the

European market. The flower industry

should benefit from the free trade

agreement at a yearly growth rate of

2%. There are a number of steps that

must be undertaken in the market to

facilitate this growth. Among others,

they include an increased consumption

of cut flowers per capita as well

as promotion of sustainable and

responsible floriculture.

Rapidly changing market

We believe that the market is changing

rapidly nowadays, and we must

adapt to consumers’ needs. Ecuador

has the longitude and the altitude

to produce great flowers, especially

roses, but first and foremost, the

Ecuadorian growers have just the

right attitude towards the market. It

is our association’s belief that, after

all pieces fall in their places, our

industry will stand strong keeping

its focus on the market. Expoflores

is working with all its members to

improve the cost efficiency of their

businesses, with the major advances

being made already now.

As a final message to the breeder’s

community, on behalf of Expoflores

I would like to thank you all for the

continuous support and partnership

that we have managed to establish

over the past 30 years. I am sure

we shall continue strong and firm.

Thank you for believing in Ecuador,

its quality, capabilities and for trusting

in our people. |||


IP in the World

The Mexican

Federal Law for

Plant Varieties

(1996), which

establishes

the national

regime of Plant

Breeder’s Rights

(PBR), is a

result of a long

analysis and

consultation

process which

had been

initiated in 1992.

by Enriqueta

Molina Macías

Plant Variety Protection

System in Mexico

The Law corresponds to the

standards of the 1978 Act of

UPOV, which Mexico acceded

to in 1997. It currently provides

the 18-year protection term for

vines, perennial and semi-perennial

species and a 15-year term for other

species and guarantees the protection

for all genera and species of

plants. The Ministry of Agriculture

through SNICS is in charge of the

national PBR application process.

Procedure

In order to register a PBR, the application

in the official format along

with a technical report, fee payment

receipt and an accreditation of the

legal representative should be filed

to SNICS. The technical report

should be completed in accordance

with the UPOV Test Guidelines, except

for some crops with a national

protocol due to their diversity. In

response to the national programs

and commercial potential of new

species, Mexico has developed national

guidelines, e.g. for Jatropha 1 ;

In absence of a crop guideline for

the candidate variety, the applicant

should describe the characteristics

following the UPOV TG/1/3 2 . The

national reference for this process is

included in regulation NOM-001-

SAG/FITO-2013 3 . All documents

should be submitted in Spanish

or accompanied by their official

translation. Upon filing, SNICS

analyzes the application and carries

out the denomination check via the

UPOV database and the National

list of Plant Varieties (CNVV).

After a preliminary exam of novelty

and the denomination, SNICS

authorizes the issue of the provisional

title. This procedure takes

approximately 120 days to complete

(usually 30 days or less).

Pictured left to right are Aquiles Carballo Carballo, Dr. José Luís

Figuerosa Velasco, Ing. Enriqueta Molina Macías and Peter Button.

Rose grower in Mexico.

Further review

The further review is performed by

the Committee of Plant Varieties

(CCVV), whose objective is to

verify the fulfillment of novelty and

DUS requirements by the plant

variety. The proposed denomination

is also reviewed and approved.

The Committee is assisted by the

Technical Support Groups (TSG)

on each genera and species. These

groups facilitate the analysis of

technical, morphological, physiological,

biochemical, molecular

and statistical aspects. TSGs are

the heart of the System. Founded

in 1995 during the preparatory

stage to the Law promulgation,

they consist of representatives of

governmental and non-governmental

bodies, as well as universities,

research centers, producer and

grower associations. The TSGs specialize

in agricultural, ornamentals

and forest, vegetable, fruit crops, as

well as in molecular and statistical

techniques. They have enabled

the creation and strengthening of

national capacities in plant variety

description and DUS testing.


At a seminar in Mexico keynote speaker and CIOPORA Secretary

General Dr. Edgar Krieger provided insights in IP matters.

Identification

The identification of the variety

and its compliance with DUS

requirements by TSGs present

the focal point of the plant variety

assessment. The results of their

considerations are presented to

the CCVV, which reviews all the

information integrated by SNICS,

including novelty, denomination

and DUS. The title is issued once

the Committee confirms the fulfillment

of all the requirements.

The entire application process

takes from six to eight months.

To present moment, Mexico had

granted 1.325 titles, including 425

titles to Mexican breeders 4 . Once

the title is granted, the breeder is

asked to provide a variety sample

for the reference collections.

Enforcement

Over the past three years, SNICS

has launched two information

campaigns to promote Plant

Variety Protection with the goal

to enhance the farmer's access to

the latest technologies and the

varieties with improved characteristics

5 . The efforts undertaken

to build the awareness towards

PVR among the research centers,

universities, industry associations,

governmental authorities and agricultural

sector resulted in significant

improvements in perception

and understanding of PVR and

their role, especially within the

ornamental sector. Today growers

are convinced of the relevance of

the Plant Breeder’s Rights for the

establishment of the productive

partnerships within the green

sector. It is very important that

breeders as well see themselves as

partners of growers, with SNICS

as liaison to promote and strength

collaboration and benefits to the

agricultural sector in general.

In regard to of inspections and

control, SNICS has developed

58 verification procedures, which

have strengthened enforcement,

and have allowed to create legal

precedents in the specialized

court on the field of Intellectual

Property (SEPI). The successful

PVR awareness campaigns and

the creation of new high-tech

laboratories for in vitro propagation,

such as the Technological

Development Center of Tezoyuca,

allowed Mexico to position itself

as an attractive hub for effective

collaboration between breeders

and growers and as a producer of

high-quality propagation material

for national and US markets.

Law amendment

Today, almost 20 years after the

Federal Law for Plant Varieties

came into force, it is important to

continuously update its provisions

in accordance with the standards

of the international legal practice

and the rapid technological

development of the past decades.

The main national goal is not

the accession to the 1991 Act of

UPOV, but the strengthening of

the currently established PVR

regime.

A new PVR Law draft was presented

to the Congress in 2012,

but the approval was unfortunately

blocked by some interest groups

with varying opinions on issues of

biodiversity, GMOs (regulated by

the Biosafety Law of 2005) and

IP, despite the fact that Mexico

has an extensive legal mechanism

in place to protect agrobiodiversity

and the public interests (Seed Law,

2007, and the National System

of Plant Genetic Resources (SIN-

AREFI)).

Updating the PVR regulations

is essential to providing guarantees

for the continuous access

to better technologies and to

creating a favorable environment

for production, trade and export,

especially in ornamental sector.

It is an important precondition

for maintaining the competitiveness

of the country, as well as

for avoiding the creation of an

unbridgeable gap in technological

development of the sector.

Concluding remarks

In Latin America, Mexico has

assumed a leading position in

development of the international

guidelines for variety description

and plant variety registration,

including the DUS testing for the

EU (CPVO) and the building of

its technical, administrative and

legal capacities. Today the process

of PVP title registration takes as

little as 6 to 8 months. A number

of important advances were also

made in raising awareness towards

PVR and their enforcement. The

national plant breeding capacities

were promoted and significantly

enhanced. Under the modern

circumstances the amendment of

the PVR Law remains the most

urgent task in order to ensure

Mexico's status as a center for

technological development and

transfer in the Latin America, to

expand and accelerate its plant

production and exports. In my

opinion, CIOPORA plays a key

role as Mexico’s partner in this

important task. |||

1 http://snics.sagarpa.gob.mx/dov/

Paginas/Guias_Tecnicas.aspx

2 General Introduction to the

Examination of Distinctness,

Uniformity and Stability and the

Development of Harmonized

Descriptions of New Varieties

of Plants

3 NORMA Oficial Mexicana

NOM-001-SAG/FITO-2013,

Por la que se establecen los

criterios, procedimientos

y especificaciones para la

elaboración de guías para la

descripción varietal y reglas

para determinar la calidad de las

semillas para siembra. http://

www.sagarpa.gob.mx

4 All the information regarding

applications and titles may be

consulted in the Official Federal

Gazette, http://snics.sagarpa.

gob.mx/Documents/2015/

Gaceta.pdf and through the

SNICS data base SIVAVE

(Plant Variety System): http://

www.snics.gob.mx/sivave/

5 http://snics.gob.mx/

proteccionvarietal.html ; http://

snics.gob.mx/snics/pirateria.

html

About the author

Enriqueta Molina Macías is responsible for the creation of the Mexican

System on Plant Variety Protection, SNICS General Director (National

Service of Seed Inspection and Certification) “Servicio Nacional de

Inspección y Certificación de Semillas”) from 2003 to 2015 and Mexican

representative of Mexico in UPOV since 1996. Author’s comments are

strictly personal and do not reflect the opinion of any institution.


Biodiversity

Plant breeding,

whether on the

basis of traditional

or more advanced

techniques, is

essentially the art

of combining the

genetic composition

of existing plant

material into an

improved progeny.

New plant varieties

with higher yields,

altered flower

architecture or

drought resistance

are examples of

how plant breeding

enhances biological

diversity. To achieve

this goal, the lengthy

process of research

and development,

which is inherent

to all plant

breeding activities,

necessarily

presupposes the use

of existing biological

resources.

by Philippe de Jong

Are you being

duly diligent??

There are various types of

genetic resources a breeder

can use to create genetic

variation, including: using his own

breeding material, using material

from gene banks, building on the

material of commercially available

plant varieties, or using material

collected in the wild during bioprospecting

missions.

The international

ABS framework

In 1992, a specific convention,

called the Convention on Biological

Diversity (CBD), was adopted to

avoid misappropriation of such biological

resources. The CBD’s main

objectives were to ensure that the

planet’s genetic resources remained

sufficiently conserved and used in

a sustainable manner, and that the

benefits arising from their utilisation

would be fairly and equitably

shared with the countries providing

those resources.

Following discussions on how the

CBD could be given more power,

in 2004, the CBD’s members (or

parties) were instructed to elaborate

and negotiate an international

regime to advance the achievement

of the CBD’s third objective (concerning

access to genetic resources

and benefit-sharing). That process

eventually led to the adoption of

the Nagoya Protocol to the CBD

on 30 October, 2010.

The Nagoya Protocol sets out a

general framework on “access and

benefit-sharing” (ABS) of genetic

resources. It provides that benefits

arising from the utilisation of

genetic resources should be shared

“in a fair and equitable way with

the party providing such resources

that is the country of origin of such

resources...”.

The specific conditions under

which benefits are shared for spe-

Formal and

substantive duty

The precise format of the formal

obligation still needs to be defined

in the implementing legislation, but

it will, in any event, entail the filing

of a declaration form on two occacific

transactions are to be set out

in Mutually Agreed Terms (MAT),

i.e. private law contracts between

the provider and the user of the

genetic resources.

It also provides that the country

of origin exercises sovereignty over

its genetic resources and thus has

the right to require that its genetic

resources are only accessed with its

Prior Informed Consent (PIC).

The Protocol also establishes a

so-called “ABS Clearing-House”.

Under this mechanism, which

is a feature on the CBD website,

all information on ABS should

be shared, including information

from each party to the Nagoya

Protocol on the applicable rules and

formalities for PIC and MAT. Next

to these rules on ABS, the Nagoya

Protocol also sets out the obligations

for Parties to take appropriate

measures to ensure compliance

with and monitoring of those rules.

The European scene:

under construction

In Europe, the implementation

of the ABS rules has been left to

the Member States. The European

Union, however, has adopted a

specific Regulation to implement

the compliance pillar of the Nagoya

Protocol, - Regulation 511/2014/

EU of 16 April, 2014, “on compliance

measures for users from the

Nagoya Protocol on Access to

Genetic Resources and the Fair

and Equitable Sharing of Benefits

Arising from their Utilization in

the Union” (the NPC Regulation).

The NPC Regulation (partially)

entered into force on 12 October,

2014, which also happens to be the

date of the entry into force of the

Nagoya Protocol. The rest, including

its most important provisions

on the formal and substantive due

diligence obligations, which are set

out further below, will enter into

force one year later, on 12 October,

2015.

It would by far exceed the boundaries

of this short article to discuss

the scope of the NPC Regulation

in detail, particularly since quite a

number of elements remain unclear

and await further implementation

and/or clarification by the European

Commission.

In January 2015, the Commission

organised a stakeholder meeting

and it is currently developing

implementing rules and guidance

documents based on the results of

that meeting. All this should be

ready by October 2015.

In a nutshell, however, the NPC

Regulation is said to apply to

“genetic resources over which States

exercise sovereign rights ... that are

accessed after [12 October 2014]”.

EU law-makers have taken the

view that such sovereign rights

are not necessarily exercised just

with respect to the raw material

in the form received, but can also

be exercised in respect of all types

of genetic resources, including commercial

varieties. It will be up to

breeder to determine whether sovereign

rights are exercised regarding

the biological material he wants to

use in his breeding program. If they

are and if the genetic resources were

accessed after 12 October 2014,

then the NPC Regulation imposes

both a substantive obligation to

exercise due diligence and a formal

obligation to declare that such due

diligence has been exercised.


According to the European Commission,

the same applies to genetic

resources accessed in a country that

is a Party to the Nagoya Protocol,

but that has not posted the applicable

rules on the Clearing House

website. However, in the event of a

compliance check by the competent

national authorities, the European

Commission takes the view that

the breeder would still carry the

burden of proving that the filing of

a due diligence declaration was not

required. It is therefore important

to keep detailed records of what has

been accessed, where and when.

>>>

Photo credits: Altius.

About the author

Philippe de Jong is a lawyer in the Intellectual

Property and Life Sciences department at the Altius

law firm in Brussels, Belgium. He has been a member

of the Brussels bar since 2002 and specialises in

patents, Plant Variety Rights and parallel import

litigation. He also advises clients on the regulatory

framework for medicinal products and plants,

including GMOs. He worked as a consultant for

the CPVO and has represented a large number

of innovating companies before the Belgian and

European courts. The author represents the two

consortia of plant breeders in the proceedings

before the General Court of the European Union,

referred to in this article.

sions, the so-called “checkpoints”.

The first occasion is upon the

receipt of research funding (which

includes both public and private

funding); the second occasion is “at

the stage of final development of a

product”, which can, depending on

the situation, either be at the time

of filing for marketing authorisation,

the placing on the market of

the product developed from the

utilisation of genetic resources, or

another event.

According to the substantive

obligation, all “users” of “genetic

resources” should exercise due

diligence that the genetic resources

they “utilize” have been “accessed”

in accordance with the applicable

national ABS legislation and that

PIC and MAT agreements have

been concluded. All the terms between

quotation marks have been

separately defined in the NPC

Regulation.

Only for resources

accessed in a party to

Nagoya Protocol

To begin with, the term “access”

is defined as “the acquisition of

genetic resources … in a Party to

the Nagoya Protocol”. In other

words, if the material is accessed

in a country that is not a Party

to that protocol, the obligation

of due diligence does not apply.


Zooming in on IP

Only for EU plant

breeding

Next, a “user” is defined as “a

natural or legal person that utilizes

genetic resource...”. In turn, the

term “utilization” is defined as “to

conduct research and development

on the genetic and/or biochemical

composition of genetic resources,

including through the application

of biotechnology...”. According

to an informal clarification from

the European Commission, the

NPC Regulation will only apply to

utilisation of genetic resources in the

EU. In other words, if the research

and/or development take place

outside the EU, the Regulation’s due

diligence obligations will not apply.

However, “genetic resources” are

broadly defined as “genetic material

of actual or potential value”,

whereas the term “genetic material”

means “any material of plant,

animal, microbial or other origin

containing functional units of heredity”.

It is immediately clear from

these definitions that plant breeders

are users within the meaning of the

Regulation and that plant breeding

is a form of utilisation of genetic

resources.

A lot of information

Unless this “user” manages to obtain

an “internationally-recognised

certificate of compliance”, which is a

type of permit that may be provided

by the country of origin in case PIC

and MAT have been concluded, the

NPC Regulation imposes upon “users

of genetic resources” a number of

cumulative obligations to be met for

the user to be considered as having

exercised due diligence.

The “user”, amongst other things,

has the obligation to seek, keep and

“transfer to subsequent users”, information

and relevant documents

on (i) the date and place of access of

genetic resources, (ii) the description

of the genetic resources utilized, (iii)

the “source” from which the genetic

resources were directly obtained “as

well as subsequent users of genetic

resources”, (iv) the presence or absence

of rights and obligations relating

to ABS, (v) access permits, and

(vi) MAT. Users have to keep all of

this information “for 20 years after

the end of the period of utilization”.

Breeders´ exemption

Taking into account that, according

to the European Commission, the

term “genetic resources” also covers

commercially available material of

protected varieties for further breeding

purposes, it is immediately clear

that, with respect to varieties protected

by a plant variety certificate,

the European due diligence rules

create a conflict with the breeders'

exemption under the Plant Variety

Rights regime. This is because the

due diligence obligation effectively

abolishes the principle of free access

to germplasm. On the one hand, it

forces the breeder of the new variety

to seek all the required information

and documents listed in the NPC

Regulation from the breeder who

put the variety on the market and

thereby to disclose his intention to

use material of the initial variety to

the owner of that variety. On the

other hand, it forces the owner of

the protected variety to disclose his

pedigree to the new breeder (which

is normally confidential and which,

after a few years of application of

the Nagoya Protocol, may include

hundreds of different genetic

resources). The NPC Regulation

thus creates a legal and commercial

relationship between plant breeders

that previously did not exist.

Ironically, without this relationship,

neither breeder can comply with

the NPC Regulation’s due diligence

requirements…

Severe sanctions

To make things worse, according

to European law-makers, whenever

“the information in their possession

is insufficient or uncertainties

about the legality of access and

utilization persist”, plant breeders

should still try to obtain an access

permit and/or establish MAT. If

this is not possible, which will

hardly ever be the case, they should

simply “discontinue utilization”!

If the user continues, the genetic

resource in question (and, in view of

the “knock-on” effect created by the

NPC Regulation, all plant material

building on that genetic resource)

will be considered as having been

illegally accessed. In that case, the

competent national authorities will

have recourse to a wide variety of

remedies against the non-complying

user.

What the future

will bring

In this context, it is clear that plant

breeders should keep as detailed

records as possible on the origin of

the resources they use in their plant

breeding activities after 12 October,

2014. The implementing rules

that will be adopted later this year,

as well as the promised guidance

document should provide some

further clarification for breeders on

how they can align themselves with

the NPC Regulation.

However, it is clear that many

uncertainties will remain. This is

why on 28 July, 2014, two consortia

of German and Dutch plant breeders

launched an annulment action

against the NPC Regulation. The

cases 1 are currently pending before

the EU General Court. A date for a

decision has not yet been set. |||

1 Cases T-559/14 and T-560/14.


by Richard Petri

Opinion

Thoughts about genetic resources

I am just riding

on a horse in

Ethiopia from

the vast Dodola

plains through

an ancient forest

with magnificent

and huge Hagenia,

Podocarpus and

Juniperus trees.

Soon I will reach

the Afro-alpine

zone with giant

lobelias, pillows

of helichrysums

and colourful

poker lilies. While

I am reaching the

heather zone I

see huge tracts of

burned heather as

far as my eyes can

see, which have

been set into fire from local farmers to enhance regrowth of

fresh shoots for their livestock. Of course it is illegal but it

seems unfair to me to judge as Westerner demanding unspoilt

nature while people are simply battling for survival.

These fires, however, do not only harm plants and animals.

I was planning to meet Biniyam Admassu, an advisor of

the Frankfurt Zoological Society who was helping me

preparing trips in the Ethiopian conservation areas. Just a

few days before my arrival he lost his life in the flames trying

to protect the Bale National Park, home to the last and

endemic Ethiopian wolves. What a tragic end for a young

and exceptional conservation champion. But realistically, it

seems unavoidable that this globally unique eco-zone with

all its species and genetic diversity will disappear not being

considered for any commercial use of its existing genomes.

At the same time, vibrant and fierce discussions are ongoing in

our horticultural industry on how to deal with benefit sharing

models to avoid genetic exploitation of biodiverse hotspots. I am

working for Selecta, a worldwide known breeder of vegetative

ornamental plants. Yes, I know little about breeding, but I

believe that limitations and excessive control have never inspired

research and development, but rather refrained people from

thriving innovations. Whether a global contract can balance the

interests of the holders of genetic resources and those who have

to technologize to use them – I really doubt.

I reach the first hut at 3,450m., tired from a 5-hour climb

and thus absolutely in need of a good bottle of beer or

maybe two. Ten years ago the breweries of Ethiopia were

mainly in the hands of the government. Now the big global

beer giants have taken over some of them. Of course, new,

fresh brands have been launched since then. For example

Walia beer, which had just a year ago still been unknown to

me. Now you can get it everywhere. Even in that hut where

it has to be carried up by horses from the next store 1.000m

below. Holding the first bottle in my hand, I think about the

name “Walia”, the animal logo and its bottle design. Walia

is a unique and endemic capricorn species, only found with

500 individuals up in the Simien mountains of Northern

Ethiopia. The Ethiopian Wildlife Conservation Authority

also keeps the Walia in their logo. So is this an intellectual

property infringement from the brewer company? And: How

will the species benefit from its commercialization?

In the flower industry we all deal with mostly generic products.

After years of seedlings and trials we try to protect our

breeding achievements by means of Plant Variety Protection,

but competition can use the new variety for its own breeding

activities to create new commercial varieties. This is possible

due to the breeders´ exemption. In the long run, that levels out

any competitive advantage, the minimum distances are getting

smaller and smaller. Indeed the trade and the consumer see

less and less differentiation in our varieties. Thus, they will

play the game of lowering prices year by year.

Since a recent decision from the Enlarged Board of Appeal of

the European Patent Office it is now possible, under certain

circumstances, to obtain patents on plants. This decision

follows years of discussions and concerns whether the breeders´

exemption will have to be dumped thereafter.

Let’s have a look at one of our breeding breakthroughs:

the double flowering Calibrachoa. This plant is clearly

distinguishable, it has an improved root system, is easier

to handle for growers (with less chemical input) and

continuously flowers all throughout the season.

I do not see why years of effort and investment into research

should not pay off like it would in other industries. Try to

copy a brand from Nestlé or imitate a technology from Apple

and you will see.

I again have a look over the vast plains from Dodola, empty

and dusty at the end of the dry season. What would happen

if the people there could harvest their crop for a second time,

maybe with a new breeding of drought resistant crop?

Richard Petri is Selecta Klemm’s head of marketing and product management. An experienced grower and

horticulture engineer, Richard has been working with Selecta for nine years now. Richard started his career at

Selecta in 2006 when he was appointed as general manager of the company’s production site in Uganda.

In 2010, he returned to Germany to assume his current position. r.petri@selectaklemm.de


IP in the World

In recent years,

the protection of

Intellectual Property

(IP) rights in the

People’s Republic

of China has

become one of the

priority business

issues for more and

more horticultural

companies.

The promising PVP

system and PBR law

enforcement in China

In September 2011, the Chinese

Ministry of Agriculture (MOA)

introduced a new Bureau for

Seed Administration to integrate

PVP and VCU (Variety Registration)

for agricultural crops and

plants. By November 2012, 10.000

PBR applications were filed at

MOA.

by Dr. Shujun Yu

Upgrade

As of April 2013, the State Forestry

Administration in charge of forest

trees and woody ornamentals (SFA)

upgraded the list of protected

varieties in China to 120 genera

and species. By the end of 2014,

MOA received an annual average

of 1.650 PBR applications. Further

developments are planned for 2015,

including the establishment of the

Strategic Ally China Guangdong

Association for Advancement of Industrial

Technology Innovation for

Ornamental Plants (GAITOP) and

opening of the first Chinese auction

for landscape & garden plants.

In addition, a review of the Seed

Law is planned to take place in

2015. The prognosis is that the law

will incorporate some provisions of

the 1991 Act of UPOV.

PBR Enforcement

In order to enforce a PBR in China,

it should be first confirmed that the

allegedly infringed plant variety is

indeed under protection in China.

Additionally, the variety must be

identified. Due to the lack of local

comprehensive DNA database, this

procedure might become lengthy

and costly. Alternatively, the

material of protected variety can be

imported from e.g. the Netherlands

to China via Chinese embassy in

Amsterdam, who will serve as notary

for the procedure. The Chinese

court will then appoint a DNA

fingerprint analysis of the plant

variety in question, which will be

carried out locally. Chinese courts

also accept DNA fingerprints of

the involved variety directly from

foreign authorities as evidence on

the case.

Choosing a competent court for a

PBR enforcement case is vital for

the case. For instance, in contrast

to courts in Shanghai or Yunnan,

the courts in Jiangsu have a lot of

experience with PBR cases.

The estimate cost of a court case

on PBR infringement, including

the collection of evidences and the

variety identification, amounts for

100,000 RMB (approx. 15.000

EUR). However, depending on

quantity of illegally propagated

plants, the return on investment

on such a case can be over 200.000

RMB. |||

About the author

Dr. Shujun Yu is an IP and corporate

law attorney at Beijing Hengda

AgForest PBR Attorneys Co., Ltd..


AGM

More than 100

plant breeders

and intellectual

property experts

gathered in

Hamburg for the

54 th Annual General

Meeting (AGM).

Defining and refining

the needs of plant breeders

by Brittany Posey

Each year, AGM provides

a platform for innovative

breeders from the ornamental

and fruit sectors, as well as

Intellectual Property (IP) experts,

to discuss the current system of

IP protection for plant innovation

and ultimately design the blueprint

for CIOPORA’s position on IP for

plants. AGM 2015 (April 27-30)

was no exception, and CIOPORA

members voted to approve the IP

Position Paper on General Plant

Breeders´ Rights (PBR) Matters.

While general, this paper tackles a

number of vital pieces of the PBR

puzzle including the application

process, PBR enforcement and

duration and cost of protection,

amongst other items (To learn

more, read Dr. Edgar Krieger’s

article on page 21).

Approval

During AGM 2015, participants

also dug deeper into the goals

of CIOPORA and helped define

ways in which the organization

can strengthen its support for

Plant Breeders worldwide. AGM

participants unanimously approved

a strategy proposal which recommends

that CIOPORA broadens its

focus toward Patents and Biodiversity,

increases educational activities

for members and provides assistance

in enforcement activities of groups

of members.

CIOPORA also received approval

during the event for the decision

making process in technical matters.

As part of this new structure, Head

Technical Experts shall be

appointed to help gain deeper insight

into the discussions of all technical

matters related to CIOPORA in

all bodies where CIOPORA is party

or observer. This process will help

the flow of information on topics

important to CIOPORA members.

Networking at

its sweetest

While hours of thoughtful debate

between lawyers and breeders kept

everyone on their toes, the week was

also sprinkled with lively networking

events and tours. On Monday evening,

CIOPORA members gathered

to kick off the event at LokalGold,

where they networked on (literally)

the Binnenalster, a scenic manmade

lake in the heart of Hamburg city.

On Tuesday, participants dined, and

took in a view of the river Elbe, at

Hamburg’s historic Hotel Süllberg.

On the final day of AGM, participants

got hands-on with specialized

business excursion tours within

Hamburg and the surrounding

areas. Those with interests in the ornamental

industry visited the brand

new concept store of Blume2000, a

leading German floral retailer, followed

by tours of Rosen Tantau as

well as Hachmann Rhododendron

Nursery. Fruit excursion participants

visited the Esteburg Center of

Fruit Production in Jork, Germany,

where they heard from researchers

and fruit breeders on current issues

in breeding and new varieties. The

fruit excursion also included outings

to the organic fruit farm Rolker

Ökofrucht GmbH and a tour of apple

and cherry orchards at the Fruit

Research Center Esteburg.

CIOPORA would like to thank all

of those who traveled to Hamburg

for making AGM 2015 a success.

We hope to see you all next April for

AGM 2016 in Istanbul, Turkey. |||

About the author

Brittany Posey is Director of

PR & Communications, CIOPORA.


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CIOPORA’S FUTURE

CHALLENGES

GENETIC RESOURCES

Zooming in on IP

Law and practice

around the world

JUNE 2015

The CIOPORA

Chronicle is a

special edition

of CIOPORA

and the monthly

business magazine

on worldwide

floriculture FloraCulture International. All

rights reserved © 2015. No portion of editorial

may be reproduced in any form without written

permission of the publisher. Publisher is not

liable for advertisements using illegally obtained

images. The views and opinions expressed in this

magazine are those of the authors and do not

necessarily reflect the official policy or position

of CIOPORA.

Editorial & Administration Offices

FloraCulture International

Business address: ECA Office 140-21, Legmeerdijk 313,

1431 GB Aalsmeer, the Netherlands

Postal address: Postbus 1081, 1430 BB Aalsmeer, the Netherlands

T (31) 297 769 095

Editor-in-chief: Ron van der Ploeg

(ron@floracultureinternational.com)

Editors: Anna Kaehne and Brittany Posey

(brittany.posey@ciopora.org)

Contributing writers: Ersin Dereligil, Bruno Etavard, Kees

van Ettekoven, Krista Hill, Tracey Irani, Robert Jondle, Philippe

de Jong, Anna Kaehne, Bart Kiewiet, Jaap Kras, Edgar Krieger,

Alejandro Martinez, Andrea Mansuino, Yasim Metin, Enriqueta

Molina, Aydin Mutlu, Tjeerd Overdijk, Anthony Parker, Richard

Petri, Brittany Posey, Juriy Rogovskiy, Fleur Tuinzing-Westerhuis,

Dr. Shujun Yu.

Photography: FloraCulture International and CIOPORA

Cover photograph: Evgeny Makarov

Publisher: FloraCulture International

(jaap@floracultureinternational.com)

Printer: SDA Print+Media

Design: Finnmedia bv, Aryen Bouwmeester

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Advertising Index

COMPANY PAGE WEBSITE

Altius Advocaten 38 www.altius.com

Beijing Hengda 40 www.yupvpeg.oinsite.cn

CIOPORA 24-25 www.ciopora.org

Conard-Pyle Co. 2 www.conard-pyle.com

Destek Patent 30 www.destekpatent.com

Dummen Orange 42 www.fides.nl

Innovaplant

40 www.kientzler.eu/en/kientzler-group.php

Invokat (Interlectual Property Services) 20 www.invokat.com

COMPANY PAGE WEBSITE

IRBA (Int. Rose Breeders Ass.) 3 www.ciopora.org

Meilland International 48 www.meilland.com

NIRP International 8 www.nirpinternational.com

Parharenko 40 www.parharenko.com

Rosen Tantau 40 www.rosen-tantau.com

Royalty Administration International 47 www.rai-worldwide.com

Selecta Klemm GmbH & Co. KG 43 www.slectaworld.com

Vondst Advocaten 8 www.vondst-law.com

This index is provided as a service to our readers. The publisher does not assume responsibility for errors or omissions.


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