2014 CIOPORA Chronicle

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Intellectual Property The availability of new varieties is very important for society, but also for breeders, growers and farmers. Just think of new varieties with disease resistance, herbicide resistance, drought resistance, the ability to withstand lower temperatures, salt tolerance and the ability to grow with less fertilizer. The International Association of Horticultural Producers (AIPH), representing ornamental growers worldwide, shares this interest with plant breeders and this forms the basis for consultation with CIOPORA and other relevant organisations. by Mia Buma Growers’ perspective on the role of effective IP protection The aim of the AIPH standing Committee for Novelty Protection is to communicate the views of growers in relation to plant novelty protection and Plant Variety Rights (PVR). AIPH endorses the UPOV system and is of the opinion that the system plays a positive role in the development of the sector and the relationships between breeders, propagators, growers and traders. AIPH is encouraging countries to accelerate the implementation of a PBR system and to bring their legislation in line with the Act 1991 of the UPOV Convention. AIPH pleads for strong and balanced PBR that helps breeders to act in protection of their rights and supports growers who legally use protected varieties. What kind of right is Plant Breeders Right (PBR) exactly? AIPH believes that the system of Intellectual Property (IP) protection, to which PBR belongs, benefits the progress of mankind and society. The goal of PBR is to stimulate plant breeding by means of an IP system, which ensures that we (society) accept that certain entrepreneurs can gain a monopoly for certain products, for a certain period of time and under strict conditions. This matters because it is important to society to stimulate intellectual and economic activities that contribute to technical and intellectual progress. This in turn supplies essential and useful products to society. It holds for plant breeders as well as all inventors and creators, including the holders of patents, designs, etc. An IP right is an abstract right. This is the fundamental basic principle of all IP systems. It means that a PBR is not a right on a plant, but it is a product of the mind, an attainment of the spirit. An abstract right means that it does not rest on something tangible like the ownership of a house – something you can see and feel – because the subject of its protection is an idea, which occurs in the human brain. It is the Eureka moment! The IPR is also an absolute right, which means a right you can exercise against everyone. Furthermore, a breeder acquires a monopoly in the form of a PBR, but under rather strict conditions. For example, under the breeders’ exemption PBR only extends to harvested material if the breeder had no reasonable opportunity to exercise his right on propagating material (Art. 14.3 of UPOV). Because society benefits from innovation and technical and cultural progress, the monopoly makes an exception to the rules of competition and the free market forces that normally apply. Why are PBRs so important for the industry? When you understand the fundamental principles of the IP system, you will see that a PBR is not a sole right of breeders, but a right of the society. This means it concerns all parties involved, including breeders, growers, producers, traders and even consumers. Therefore, a PBR has to be exercised and enforced in balance with the interests of all the parties involved. In short, PBR is not a right that serves only breeders’ interests, although sometimes this is mistakenly assumed by some breeders and their lawyers and it is clear that the use of PBR to control the market should be prevented. The provision that requires sufficient availability of the propagating material of protected varieties at reasonable terms is important, as is the compulsory license provision in international treaties and national laws. Both provisions aim to prevent absolute market control. In some national PBR legislations these provisions are included (e.g. The Canadian Plant Breeders’ Rights Act 1990). Innovation and product renewal are the basis for progress in the ornamental sector. Therefore plant breeding and an effective PBR system are fundamentally important. Society in general, and growers in particular, are interested in the development of new varieties, and so AIPH pleads for a strong and balanced PBR system, which endorses fair competition. It is important for growers and farmers that they are supplied with the demanded amount of propagating material at the right time and at a reasonable (and equally available) price to ensure fair competition. What are the key issues since the introduction of PBR? The question about the minimum distance between varieties has always been on the list of challenges for the PBR system. What does and what does not fall within the scope of granted PBR, or: when is a new variety sufficiently distinctive (innovative) to be granted a PBR? The issue of Essentially Derived Varieties (EDV) and the discovery of a mutant, for which PBR may be granted, are examples of this issue. Furthermore, we have to bear in mind that the question about minimum distance has to be answered in light of the legal basis of the PBR system (the benefit of society!). It means that the distance between certain varieties with a very limited assortment, such as vegetable varieties (cucumbers, tomatoes and lettuce), can be smaller than in trees, bulbs or other crops that are more time-consuming to breed. Otherwise, it would be impossible to obtain PBR titles for varieties with a limited assortment and this would stop, rather than stimulate, 46 www.FloraCulture.eu | CIOPORA Chronicle June 2014
the breeding of these crops. For example, if a breeder, after a 25-year long process of breeding resulting in one good new commercial apple variety, is granted a PBR, it is not fair if a competing breeder, who only adds a slightly or insignificant charateristic, is granted a PBR as strong as the first breeder. In short, the minimum distance each new variety should fulfil, will have to be determined individually on the basis of important variety characteristics (main characteristics). The establishment of common guidelines in this regard has been agreed at diplomatic conferences to UPOV 1991, but unfortunately it has not been completed by UPOV. In years preceding the Act of 1991, UPOV was busy formulating the main characteristics for 10 to 12 important varieties with the goal of helping to decide if the criteria for distinctness had been reached. In October 2013, at the UPOV seminar on EDV in Geneva, AIPH once again urged UPOV to complete these guidelines. The importance of PBR for growers of ornamental crops The availability of new varieties is important, for society and for the industry. It is also vital for breeders, propagators, growers and farmers that there is a common understanding about what a variety is and when a new variety exists. Based on this, all parties involved have to find common ground on issues such as minimum distances, EDV and mutants. If we solve these issues, the current EDV rule, which has been deemed unworkable, can be removed from the UPOV treaty and national PBR laws. If we succeed in making proper arrangements concerning the minimum distance between varieties, the impractical EDV provision would become unnecessary. It is important for growers and farmers that they are supplied with sufficient propagating material in time and at a reasonable price. However, these issues are sometimes not easy to discuss with breeders. It is in everyone's interest that new varieties are launched and introduced carefully to avoid unnecessary underselling and market disruptions. From the past we can learn how in a very short time market shares can shift and change with the introduction of new varieties. For example: Van der Have owned 80% of the world market for grain in the 1980s. Now Van der Have, although having since merged with another firm, only own 10%. Similarly, Hazera and Danielle controlled 80% of the world tomato market in the 1990s. Today, having also undergone a merger and now under the name of Vilmorain, they own only 20%. This is an important point on which AIPH also tries to get agreement with the breeders and on which the industry could come to accordance if all involved parties admitted that the introduction of new varieties to the market has to be done restrictively and cautiously. In that case the market control on the basis of PBR can be prevented. Here lies a basic necessity of consultations between all involved parties and their associations. Final remarks It is clear, from the growers point of view, that PBR is of social The representatives of AIPH and CIOPORA met during the IFTF 2013 in Vijfhuizen, the Netherlands, engaging in a fruitful discussion on the role of PBR for breeders and growers (Photo credits: CIOPORA). importance in general and of commercial importance for growers in particular. A good working PBR system is important for product differentiation that can provide a marketing advantage for growers. AIPH is working on an internal program with the aim to enhance the awareness of PBR among its members and to stimulate growers’ engagement with the subject. Subsequently, the members will be able to improve their lobbying of their respective national governments on PBR related topics. AIPH also plans further engagement with the World Intellectual Property Organisation (WIPO), the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the World Trade Organisation (WTO). These organisations have historically not been involved with ornamental horticulture; it is time to change this. ||| About the author Mia Buma is the Secretary of the Committee for Novelty Protection, AIPH. In spring 2008, she started her own consultancy bureau, Mia Buma Advies. Mia is now working freelance for (among others) the Dutch flower auction FloraHolland, the Dutch Association of Wholesale Trade in Horticultural Products (VGB) and the International Association of Horticultural Producers (AIPH). In addition, Mia became increasingly involved in Plant Variety Protection (PVR) and its relation with other Intellectual Property rights. She also specializes in arbitration law. With regard to PVR, Mia is internationally active as Secretary of the Committee for Novelty Protection for the AIPH. In this capacity she keeps abreast with all the developments within the PVR field and within UPOV, where she represents AIPH in its observer status. CIOPORA Chronicle June 2014 | www.FloraCulture.eu 47
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2014 CIOPORA Chronicle

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