CIOPORA Chronicle 2015

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.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 11