CIOPORA Chronicle 2015

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.
CIOPORA Chronicle June 2015 | www.FloraCulture.eu 15