2012 CIOPORA Chronicle

April 2012 • www.ciopora.org 

The business magazine for horticultural plant breeding 

IP protection is a winning 

strategy for plant breeders 

How much open access 

page 26 can breeders afford? 

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Table of Contents 

08 

CIOPORA serves as the global 

source for the international breeding 

community 

11 

12 

14 

16 

A strong lobbying 

effort by CIOPORA 

is greatly needed 

Plant Patents in the 

United States after the 

Americas Invents Act 

U.S. plant patents 

compared to UPOV 

PBR system 

Selecta questions 

whether PBR provide 

enough protection 

19 

Does Belgian patent 

law need a breeder’s 

exemption? 

20 

A decision to the 

benefit of European 

title holders 

22 

The ‘Versilia’ Case 

24 

IP protection for fruits 

26 

How much open 

access can 

breeders afford? 

30 

Patents for plantrelated 

innovations 

in Europe 

4 www.CIOPORA.org | CIOPORA Chronicle April 2012

April 2012 CIOPORA Chronicle 

32 

PlantHaven 

values CIOPORA’s 

accessibility and 

communications 

34 

Conard-Pyle 

celebrates its 

115th anniversary 

35 

Meilland believes in 

innovation, IP, peace 

and friendship 

36 

IPP and PBR in Chile 

39 

Learning, networking 

and AGM event set 

for April 23-27 

40 

Molecular markers 

in ornamental and 

fruit breeding 

43 

Quiz: Test your 

knowledge of 

Intellectual Property 

44 

A look at 

U.S. ornamental 

horticulture 

46 

IP protection for 

plant innovations 

in Canada 

47 

Canadian PBRs 

include third 

party testing 

48 

Worldwide successful 

enforcement actions 

CIOPORA Chronicle April 2012 | www.CIOPORA.org 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. The organization 

has currently 121 members among which individual breeders, 

breeding companies, lawyers and royalty administration services. 

Top priority of CIOPORA is the constant development 

of systems of protection which both, international state 

organisations and single states, have provided for the protection 

of the intellectual property concerning ornamental and fruit 

plants. CIOPORA acts as a strong voice to governments on 

behalf of the industry. 

The Board invites you to join CIOPORA. Membership is open 

to anyone breeding vegetatively reproduced ornamental and 

fruit varieties or having an interest in IP-Protection for such 

crops. However, each candidacy is subject to the CIOPORA 

Board's approval. 

To become a member email to info@ciopora.org or fax 

to +49 40 555 63 703 


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A welcome from the President 

CIOPORA serves as 

the global source for 

the international breeders 

community 

a great pleasure for me to 

welcome all our friends who, 

‘It is 

once again, show interest in 

our annual publication. This is the 

third edition of the CIOPORA 

Chronicle, a ‘collection magazine’ 

edited by FloraCulture International 

B.V. in cooperation with 

CIOPORA, the International 

Association of Breeders of Asexually 

Reproduced Plants. 

I am very glad to underline that this 

cooperation is growing and getting 

more and more attention from the 

flower and fruit industry, and to 

confirm that many companies and 

professionals from the horticultural 

business all over the world have 

expressed enormous appreciation for 

this effort. 

In fact, during my frequent travels 

to the five continents, I very often 

find one copy of the CIOPORA 

Chronicle on the shelves or on 

the desks in the offices of flower 

companies, and many times I am 

asked questions or asked to comment 

on the various issues discussed in the 

magazine. 

This shows once more that CIO- 

PORA is perceived by the international 

flower and fruit community 

as the global source and voice when 

it comes to Intellectual Property 

matters in horticulture. Additionally, 

the efforts made by our organisation 

to foster and protect breeders’ rights, 

and to establish more and more 

awareness worldwide, have not been 

in vain. 

As in the previous editions, you 

will find many interesting articles, 

dealing with the hottest topics of our 

industry. As usual, we express our 

own view, but we also give voice to 

our friends, such as growers associations, 

scientists and lawyers, who are 

invited to contribute to our compre- 

hensive vision of the business. 

We deal with Intellectual Property 

and this is the focus of our day by 

day commitment. We cannot forget 

that the effects and the benefits 

of a strong and fair protection of 

breeders’ rights concern the whole 

industry. 

There cannot be any economic 

development without innovation, 

and there cannot be innovation without 

a solid and effective Intellectual 

Property system. This is true for all 

businesses and industries, but it is 

especially true for highly creative 

and trend-setting activities such as 

fashion, design, flowers and fruit. 

This is why we regard the CIO- 

PORA Chronicle not only as a tool 

to make our organisation known 

and appreciated and to make plant 

breeders’ rights deeply analysed and 

understood, but also as an open 

forum where everyone who is willing 


to contribute to the development of 

our industry by acknowledging the 

importance of IP rights, can contribute 

and enhance the awareness of 

the readers. 

I am honoured by the extremely high 

level of the contributions, always 

written by worldwide known experts. 

Without taking away from you the 

pleasure of discovering these articles 

further, I nevertheless must mention 

at least some of the contributions and 

make a short comment on them. 

First of all, we are all aware that 

today, the big discussions in the field 

of Intellectual Property for plants are 

focused on the protection of Biotechnology 

and GMOs, on the use of 

patents for plant–related inventions 

and on the need for effective and fair 

IP protection for both varieties and 

plant related inventions. 

Implications such as the breeder’s 

exemption, the understanding and 

the enforcement of EDVs as well as 

the increasing number of Patents are 

raising increasing concern among 

the traditional breeders’ community 

and sometimes doubts on the real 

effectiveness of the UPOV system. 

Our Secretary General, Dr. Edgar 

Krieger, one of the masterminds in 

IP for plants, draws the picture of a 

potential future IP regime for varieties 

and plant related inventions. 

It is important to mention that 

CIOPORA’s attention is also constantly 

consulted for modifications 

or interpretations of the breeders’ 

rights laws all over the world. 

Andrea Mansuino, President of CIOPORA 

In this regard, we have a special view 

on the Americas. The U.S., a UPOV 

1991 member, has, along with the 

Plant Patent a special protection 

system for vegetatively propagated 

ornamental and fruit varieties and 

the new America Invents Act shall be 

highlighted, without forgetting the 

constant concern for the consequences 

brought by the previous 

interpretation of article 102 b) in 

the Plant Patent Act. This is why 

you will also find a comprehensive 

comparison between the Plant Patent 

and the PBR in the U.S. 

Contributions on the trade dynamics 

in the Americas, knowing the importance 

of the South American fruit 

and cut flower productions for the 

US market, are also included. 

The importance of the American 

markets for breeders of ornamental 

and fruit varieties is well underlined, 

not only by the attention given in 

this Special, but also by the decision 

taken by the CIOPORA Board 

to hold the next Annual General 

Meeting at Miami Beach, Florida, 

one of the best conference venues for 

the Americans and the main hub for 

Colombian and Ecuadorian flowers 

into the US market. 

In week 17 a crowd of breeders from 

the five continents will meet in 

Miami to celebrate the General 

Meeting of their association and to 

discuss the great topics of the industry. 

They will be attending IP seminars 

conducted by specialists, crop 

sections where the main problems 

of different products are discussed, 

working groups on hot topics such as 

GMOs and minimal distances between 

varieties and an International 

Conference on IP in the Americas. 

This will be held on Wednesday, 

April 25th, with contributions from 

international speakers. 

In my position of tenth President of 

CIOPORA, I am proud to say that 

nowadays, our organisation is a reference 

for the breeders’ community all 

over the world, and that this Special 

is just a small example of many 

activities that we constantly developing 

for the interest of our industry 

and, ultimately, for the “benefit of 

the society”. 

I wish you good reading.’ ||| 


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Advocacy and lobbying 

The present market 

situation is often 

characterised by 

a supply being 

higher than demand. 

Although we cannot 

say that sales are in 

strong decline, there 

is definitely some 

pressure on the 

market with price 

levels fluctuating 

heavily from one day 

to another. Under 

these circumstance, 

a strong lobbying 

effort from 

CIOPORA is of 

utmost importance. 

by Jaap N. Kras 

A strong lobbying 

effort by CIOPORA 

is of utmost importance 

If growers suffer, the breeder and 

the retailer also suffer. Therefore, 

it is in the interest of all potential 

partners to cooperate. Cooperation 

starts at breeder’s level. A breeder is 

often in a rather delicate position as 

the industry is incredibly broad in 

scope of service and holds a highly 

fragmented character. Moreover, 

breeding firms face an extremely 

high level of competition and the 

legal basis to exercise breeder’s rights 

is not strong enough. 

There are as many opinions as 

breeders, but it is in the interests 

of all to have one single voice for 

the industry in local governments, 

supranational organisations, the 

European Union, the United 

Nations, in multilateral treaties 

such as the WIPO and UPOV 

treaties on breeder’s rights, patents 

and trademarks. 

Why are IP rights 

a necessity? 

As the internationalisation of the 

industry steadily progresses to countries 

in Asia and Latin America, 

not everybody seems to understand 

the importance of breeder’s rights 

and the opposition against intellectual 

property rights, including 

breeder’s rights, is growing. Many 

of us remember when Italy stated 

that it didn’t want to allow patents 

on medicines, for moral grounds. 

Italians considered it was not ethical 

to protect medicines by a patent. We 

all know how that ended: nobody 

in Italy was willing to invest in 

research and Italy didn’t develop any 

new medicines for years. 

What more can we learn from 

history? (the aforementioned ban 

on patent rights in Italy doesn’t 

Even the legal definition of a breeder is not clear. 

exist anymore). History shows that 

strong breeder’s rights stimulate 

breeding. 

As a specific industry evolves from 

its pioneers days into an expansion 

stage, people start breeding activities 

and firms realise the value of 

breeder’s rights. People also realise 

the value of protecting the fruit of 

their own minds by an intellectual 

property right. In the early stage of 

an economy, everybody can permit 

infringement of intellectual properties 

of others. There is little to loose. 

But as soon as the production 

reaches a level that the companies 

want to export their products the 

need for proper protection of the 

varieties starts. 

Much work to do 

After all those years with breeder’s 

right treaties and laws, the discussion 

on breeders rights is ongoing. 

The legal definition of a breeder 

isn’t even clear until now! 

Many national breeder’s rights 

laws offer the government a penal 

weapon to prevent illegal copying 

or infringing protected varieties. 

In practice, all governments say: 

breeders have to protect their rights 

themselves and they have to proof 

that somebody is misusing their 

intellectual property right(s). It is 

also up to the breeder’s right owner 

to take action against an infringer 

and to proof with civil weapons the 

misuse and claim the damages. 

This has led to the EDV discussions 

and, nowadays, the so important 

patent – versus breeder’s right 

disputes on the breeders’ exemption 

(Trips). 

I think the truth is in the middle. 

We should make the governments 

aware of the importance of a 

functional breeder’s right system. 

The government should create a 

transparent clear law system – a law 

system that protects the breeder 

optimal against infringers. 

Only a strong voice of the breeders 

helps to explain and clarify these 

needs and strengthen the breeders’ 

position. The international 

organisation for the breeders is 

CIOPORA. ||| 


U.S. Plant Patents 

The United States 

has recently enacted 

significant changes 

in U.S. patent law 

via the America 

Invents Act ("AIA") 

that will become 

effective on March 

16, 2013. 

Plant Patents in 

the United States after 

the Americas Invents Act 

The AIA has been hailed 

as the biggest change in 

American patent law in at 

least 60 years. In many ways this is 

true. However, for a party seeking a 

plant patent, the changes are not as 

significant. 

Grace period 

For example, the AIA has been 

rumored to have no "grace period" 

as part of a switch to a "first-to-file" 

system. This is not true. A "grace 

period" is a period before the filing 

date a plant patent application (or 

PBR application) where certain 

activity undertaken in that period 

(e.g., sales, public availability, etc.) 

will not affect the ability to obtain a 

plant patent in the U.S. 

Under the AIA provisions, as a 

generalization and in layman terms, 

any activity related to the plant 

to be patented that is intended to 

involve, or actually involves, the 

public by anyone starts a one (1) 

year grace period. A plant patent 

application (or PBR application, 

followed by a U.S. plant patent application 

within one year) must be 

filed within this year or the ability 

to obtain a plant patent in the U.S. 

will be lost. 

The above-referenced activity can 

be anywhere in the world. Conduct 

anywhere in the world triggers the 

start of the one (1) year grace period. 

This is a change brought about 

by the AIA, as the pre-AIA patent 

law contains many geographical 

limitations, distinguishing the 

effects of activity in the U.S. from 

extraterritorial activity. 

Good news 

For a U.S. plant patent application 

having an effective filing date of 

March 16, 2013 or later, any of the 

following events are understood to 

create a bar to patentability subject 

to an important exception identified 

infra: 

1. Plant is described in a printed 

publication (likely must enable 

the reader to reproduce the same 

plant) prior to the effective filing 

date anywhere in the world. 

2. Plant is in public use (nonexperimental 

use) prior to the 

effective filing date anywhere in 

the world. 

3. Plant is on sale prior to the effective 

filing date anywhere in the 

world. 

4. Plant is otherwise available to 

the public prior to the effective 

filing date anywhere in the world 

(e.g., provided to another for 

non-experimental purposes). 

However, if any of 1, 2, 3 or 4 occurs 

less than one year prior to the 

effective filing date and is attributed 

to the conduct of the breeder/inventor 

or to the conduct of another 

who obtained the plant directly or 

indirectly from the breeder/inventor, 

such conduct does not count 

to create a bar to patentability. 

Needless to say, this is good news. 

by Travis D. Boone and 

Benton S. Duffett, Jr. 

Travis D. Boone 

Benton S. Duffett, Jr. 

Independent development 

of the same plant 

The independent development of the 

same plant by another, if possible, 

could be a bar to patentability when 

sufficiently early. However, the genetics 

of plant breeding is sufficiently 

complex that the same new plant 

usually is not created today by different 

breeders operating independently. 

Until plant science reaches this 

point, it is extremely unlikely that 

the conduct of others can be found 

to constitute a bar to the patentability 

of a proposed new variety. 

Accordingly, a one-year grace 

period can be found to persist for 

practical purposes. An acceptable 


course of action remains for plant 

breeders/inventors operating 

outside the U.S. to seek PBR within 

one year of commercialization in a 

country abroad, and to thereafter 

seek U.S. plant patent protection 

within one year of the filing of such 

PBR application. 

Priority claim 

It will be important at the time of 

submission of the U.S. plant patent 

application to indicate a priority 

claim for the earlier PBR application 

under 35 U.S.C. §119(f). 

This claim is further perfected 

by the timely submission to U.S. 

authorities of a certified copy of 

the earlier PBR application. Such 

certified copy is prepared by the 

governmental authority where the 

PBR application was initially filed. 

Under such circumstance, the effective 

filing date of the U.S. plant 

patent application will be considered 

to be that of the earlier PBR 

application. Any potential bar to 

patentability created by the conduct 

of the breeder/inventor within one 

year of the initial PBR application 

should be obviated in view of the 

sufficiently early effective filing date 

that is accorded the U.S. plant patent 

application. 

Appropriate procedure 

So long as the PBR application 

was filed within one year of commercialization 

abroad, it should be 

possible to submit a plant patent 

application in the U.S. more than 

one year after the commercialization 

date so long as the application 

is filed in the U.S. within one year 

of the initial PBR application. For 

example, the following is believed 

to be an appropriate procedure to 

follow to obtain U.S. plant patent 

protection: 

• Commercialize in France on April 

1, 2013 (with or without a printed 

publication); 

• File a PBR application in France 

on March 1, 2014; 

• File a U.S. plant patent application 

on February 1, 2015, while 

claiming priority to the PBR 

fi l i ng. 

Accordingly, even with the substantial 

changes in the AIA, foreign 

plant breeders/inventors continue to 

be provided some additional time 

to submit a U.S. plant patent application 

provided a claim is timely 

perfected for taking advantage of 

an earlier PBR filing date. 

We are reminded that standard 

UPOV novelty provisions have 

never been a part of the U.S. Plant 

Patent Law (35 U.S.C. §161 to 

164). The AIA does not change 

this. Such typical UPOV provisions 

provide that a plant (a) must 

not have been offered for sale or 

marketed with the agreement of the 

breeder longer than one (1) year in 

the country where rights are being 

sought, or (b) in any other country 

longer than six (6) years for a tree or 

vine, or longer than four (4) years 

for any other plant. 

New and revised 

procedures 

Outside of the grace period context, 

the AIA does present some 

new and revised procedures that a 

plant patent applicant may find of 

interest. 

For instance, the AIA has revised 

the Pre-Issuance Submission 

procedures , such that a third party 

has a greater opportunity to submit 

certain information relevant to 

patentability in a competitor's plant 

patent application. The USPTO 

will then consider the information 

during examination of the 

application. 

Also, the AIA has further revised 

the procedures that a third party 

can use to challenge a plant patent 

after the grant of rights. For 

example, there will now be the 

possibility for a post-grant review 

and an expanded inter-partes reexamination 

. These are anticipated 

to require high government fees to 

initiate, and a significant investment 

of attorney time. Comments 

and inquiries are welcome. ||| 


U.S. Plant Patents 

Plants can be 

legally protected 

in many different 

ways and protection 

varies widely from 

country to country. 

Examples of types of 

protection available 

for plants in the U.S. 

and/or the European 

Community include 

U.S. plant patents, 

E.U. Community 

Plant Variety Rights 

(CPVR), U.S. Plant 

Variety Protection 

(PVP), trademarks, 

licenses, trade 

secrets and utility 

patents for plant 

varieties, mutant 

genes and methods 

of breeding. This 

article focuses on 

the strengths and 

weaknesses of 


versus European 

Community Variety 

Rights laws as they 

apply to asexually 

reproduced 

ornamental and fruit 

crops. 

by Dr. Robert Jondle 


compared to UPOV 

PBR system 

The U.S. plant patent is 

an important option for 

protection in the United 

States, and is the most common 

choice for asexually reproduced 

fruit and ornamental plants. The 

Plant Patent Act was enacted by 

Congress on 13 May 1930 and, as 

further amended in 1998, excludes 

others from asexually reproducing 

the protected plant, and from 

using, offering for sale, or selling 

the plant so reproduced, or any of 

its parts, throughout the United 

States, or from importing the plant 

so reproduced, or any parts thereof, 

into the United States. 

The 1998 amendment provided 

provisions restricting the importation 

of plant parts into the United 

States including, for example, fruits 

harvested from protected plants 

and cut flowers. It is important to 

recognise that if fruits, cut flowers 

or other plant parts are produced 

outside the United States, the plant 

patent law comes into effect at the 

U.S. border as soon as the item 

enters the United States. 

Novel, useful 

and non-obvious 

For a plant patent to be considered 

for grant, the new variety must be 

novel, useful and non-obvious. The 

term of a U.S. plant patent is 20 

years from the application’s filing 

date, and the plant must not have 

been for sale for more than one year 

before the filing date of the application 

or within one year after filing 

for a PBR under the UPOV system. 

Unlike the E.U. CPVR, no maintenance 

fees are required to be paid 

during the life of the plant patent. 

Plant patents are considerably less 

expensive to obtain and maintain 

over the 20 years compared to 

an E.U. CPVR, a U.S. PVP or a 

regular U.S. utility patent. 

In addition, the disclosure requirements 

for a plant patent are less 

stringent than for a U.S. PVP or for 

a regular U.S. utility patent. The 

breeder provides a written description 

of the new variety reasonable 

enough to distinguish it from other 

related varieties and photos of the 

new variety. 

As far as infringement is concerned, 

a plant patent holder must prove 

that the accused variety was actually 

derived asexually from plant 

material protected by the patented 

variety. Some believe that this is a 

critical obstacle in proving infringement 

during a legal proceeding, 

and thus believe the strength of 

protection afforded by a plant 

patent is marginalised as compared 

to a U.S. utility patent or an E.U. 

CPVR certificate. 

U.S. Plant Variety Protection provides 

protection for seed propagated 

(sexually reproduced) crops and 

tuber crops. Since fruit crops and 

ornamental crops are normally 

asexually propagated, U.S. PVP 

protection would not be available 

and is not discussed further in this 

article. 

UPOV system 

The most common international 

protection offered for varieties 

is the UPOV system of plant 

breeder’s rights such as the CPVR 

in Europe. The International Union 

for the Protection of New Varieties 

of Plants was established by the 

UPOV Convention in 1961 with 

additional Conventions by the Union 

in subsequent years including 

the most commonly adopted 1978 

and 1991 Conventions. 

The E.U. is a member of the 1991 

UPOV Convention which requires 

that a variety must be new, distinct, 

uniform and stable. The novelty 

requirement for breeder’s rights requires 

that a variety must not have 

been sold or otherwise disposed of 

in the territory concerned for more 

than one year prior to application 

for the right, or more than four 

years (or six years for trees and 

vines) in another country. 

For countries under the 1991 

UPOV Convention, the scope of 

protection extends to harvested 

material but the enforcement of 

harvested materials has been an 

issue, and this remains a major concern 

in Europe for ornamental and 

fruit crops. In addition, protection 

in countries under the 1991 UPOV 

Convention extends to varieties 

that are essentially derived from the 

protected variety. 


Plant breeder’s rights do not 

restrict breeding activity with a 

protected variety. UPOV permits 

one member country to conduct 

examination of a variety for potential 

granting of breeder’s rights 

and another member country the 

option to choose whether to accept 

that evaluation for its own grant. 

CPVO 

The “Community Plant Variety 

Office” is administered by a group 

of European Union (E.U.) UPOV 

member states whereby plant 

breeder’s rights are granted. A major 

difference in filing for plant breeder’s 

rights in the E.U. compared to 

U.S. Plant Patents and U.S. PVPs is 

that plant material is submitted by 

the breeder (rather than a complete 

botanical description as provided 

for U.S. Plant Patent and Plant 

Variety Protection consideration), 

and the variety is grown for examination 

in a selected site for that crop 

alongside other candidates and/or 

standard or established varieties in 

the E.U. 

In addition to a filing or application 

fee, there are fees for examination 

for the growing period of the plant 

along with annual fees for continued 

protection after approval for as 

long as the protection is desired or 

allowed. 

Discussion 

The advantages of the U.S. plant 

patent protection include the following: 

Plant patents are significantly 

less expensive than either an 

E.U. CPVR certificate or a U.S. 

PVP certificate. The total cost to 

file and receive a U.S. plant patent 

is generally less than $4,000 USD. 

There are no yearly annuity fees for 

U.S. plant patents and this protection 

lasts for 20 years for fruit and 

ornamental crops. In addition, the 

disclosure requirements for a U.S. 

plant patent are less stringent and 

no germplasm examination is required. 

The breeder provides a written 

description of the new variety 

reasonable enough to distinguish 

it from other related varieties and 

photos of the new variety. 

However, concerning infringement, 

a plant patent holder must prove 

the accused variety was actually 

derived asexually from plant 

material representing the patented 

variety. This may be an obstacle in 

proving infringement during a legal 

proceeding. 

The advantages of the CPVR 

certificate include having CPVO 

scientists conduct independent trials 

to compare the new variety with 

other commercial varieties if the 

new variety is eligible to receive an 

E.U. CPVR grant. UPOV allows 

for one member country to conduct 

an examination of a variety for potential 

granting of breeder’s rights 

and then another member country 

can choose whether to accept the 

evaluation for its own grant. With 

an issued E.U. CPVR certificate 

protection extends to Essentially 

Derived Varieties (EDV) that may 

be developed and sold by competitors 

and also extends to harvested 

materials. Some people have recommended 

that the E.U. and the U.S. 

apply a harmonised PBR system 

including DUS testing used to 

obtain an E.U. CPVR certificate. 

Very few disputes 

Obtaining and maintaining an 

E.U. CPVR certificate is often 

three to five times more expensive 

than a U.S. plant patent. Defining 

an EDV has proven to be very 

difficult for scientists and different 

courts have had conflicting decisions 

even on the exact same facts. 

Also, protection for harvested 

materials has had limited success in 

Europe. 

Currently, it appears the majority of 

companies and breeders in the U.S. 

have been reasonably satisfied with 

the protection provided by the U.S. 

plant patent and the very low cost 

and quick examination time for obtaining 

an issued U.S. plant patent. 

There have been very few disputes 

or court decisions involving US 

plant patents. Many European 

companies prefer the E.U. CPVR 

system and would like a similar system 

implemented in the U.S. This 

preference is likely due to the fact 

that a U.S. plant patent is restricted 

to the U.S. and an E.U. CPVR is 

restricted to the E.U. ||| 


Opinion 

The Selecta Group 

is a world leading 

breeder, producer 

and marketer 

of vegetatively 

propagated 

ornamental 

plants. Using 

groundbreaking 

breeding methods, 

the Selecta team 

develops hundreds 

of new breeding 

lines each year. 

Many of them have 

been successfully 

introduced in the 

market place while 

others stand out for 

further development 

and are now in 

validation trials. 

Meanwhile, the 

Selecta breeders 

ask themselves 

whether PBR protect 

their innovations 

sufficiently. 

Selecta questions 

whether PBR provide 

enough protection 

The Selecta breeding team 

consisting of more than 

60 people is active in 

developing varieties of more than 

40 species in the field of bedding 

plants, Poinsettia, perennials and 

cut flowers. The results are pretty 

impressive: Each year, the company 

is able to introduce more than 

seventy new varieties with improved 

or even new characteristics, a great 

number of them being protected by 

Plant Breeder’s Rights. 

Tidy sum of money 

Developing a new variety, from the 

first seedling to the final commercial 

product, takes at least five years 

and costs a tidy sum of money. 

The breeder’s privilege embedded 

in the PBR law enables anyone to 

use a protected variety for his own 

breeding work and to crossbreed 

with this protected genetic material. 

On one hand each breeder can use 

a wide range of varieties to develop 

new ones to the benefit of the whole 

branch. But on the other hand the 

law doesn’t differentiate if the variety 

used for crossbreeding simply is 

a further development of an already 

existing one or if it’s a real breakthrough 

innovation, something 

really new that hasn’t been on the 

market before. 

Heart, soul and creativity 

In this case the initial breeder who 

put his heart, soul and creativity in 

the development of this innovation 

will lose within a few years his USP 

(unique selling proposition) and 

plenty of varieties coming from the 

same genetic source will flood the 

market. The winner won’t be the 

most innovative breeder but the one 

who is the strongest in production 

and sales. The main objective of the 

PBR system is of course to protect 

the IP rights of breeders, either 

being individuals, small entities or 

large breeding companies, instead 

of promoting the rights of producers. 

Patents 

Taking into account all the money 

that was spent the question arises: 

Can the breeder receive enough 

compensation for his investments? 

To ensure this, some larger breeding 

companies already decided to 

apply for a patent if the level of 

invention is good enough at all. The 

patent law stipulates that the patented 

invention may be used only 

for R&D purposes and no product 

based on the patented invention 

may be marketed without the patent 

holder’s approval. 

The possibility to apply for a patent 

isn’t the answer at all considering 

the costs that are much higher 

than those to be paid for a Plant 

Breeder´s Right and moreover 

it often takes a long time until a 

patent is finally granted. And let’s 

Dr. Ulrich Sander, CTO and CMO of 

Selecta Klemm and Board Member 

of CIOPORA Germany. 

not forget the knowhow necessary 

to elaborate a patent application. 

But are patents really the solution 

for all of us? What is the answer 

for the average breeder, the huge 

number of small and medium-sized 

breeding companies that also need 

a broad scope of protection of their 

IP rights? 

Groundbreaking 

innovations 

If a breeder succeeds in developing 

a real innovation, something 

unprecedented, he of course wants 

to be ensured of the highest possible 

scope of protection. There are plenty 

of examples for groundbreaking 

innovations in our industry: 

“Diamond Frost” (Chamaesyce), 

“Hot®” (Lobelia), “Garden Girls®” 

(Calluna), “Queen®” (double flowering 

Kalanchoe), “FlowerPower® 

Double” (double flowering 


Trixi ® Petticoat 

Osteospermum) or “MiniFamous® 

Double” (double flowering Calibrachoa). 

It often takes many years until 

the first varieties can be brought into 

the market. 

Breeder’s privilege 

It goes without saying that innovative 

breeders want to avoid their competitors 

entering the market with similar varieties 

within short. Should everyone try 

to get a patent on his invention? Then 

the competitors would be completely 

banned. As an alternative we could 

also imagine to suspend the existing 

breeder’s privilege preventing the use 

of breakthrough innovations for a 

limited period of maybe 5, 8 or 10 years 

thus giving the initial breeder enough 

technological and economic advantage 

to compensate his breeding efforts. His 

competitors, on the other hand, won’t 

be left out in the rain forever. For us 

this seems to be a fair solution for all 

parties even though the political implementation 

of a possible amendment of 

the breeder’s privilege in the PBR law 

may not be achieved overnight. ||| 

Osteospermum FlowerPower ® Double Purple 

Calibrachoa MiniFamous ® Double Blue 

Calibrachoa MiniFamous ® 

Double Pink Vein 

Osteospermum FlowerPower ® 

Double White Bronce 

Selecta’s double flowering 

Osteospermum wins 

Medal of Excellence 

The double flowering Osteospermum series FlowerPower ® 

Double, last year’s world novelty, was introduced to the 

American audience at the 2011 California Spring Trials under 

the name of 3D Osteospermum this spring and has been able 

to convince producers, media and reviewers right from the 

beginning. 

After winning the Taspo Awards in Germany in 2010 in 

the category ‘Breeding of the Year’ the double flowering 

Osteopsermum varieties could also claim a coveted trophy 

in the USA - the Medal of Excellence, an award given by the 

Greenhouse Grower magazine. Selecta’s double flowering 

Osteospermum varieties could clearly asserted against the 

competition and win in two categories. 

A panel of notable opinion leaders of the industry honoured 

the double flowering varieties with the “Industry’s Choice” 

award ranking Selecta among previous award winners like 

‘Black Velvet’ (Ball FloraPlant) and ‘Snow Princess’ (Proven 

Winners). Also Selecta has been an awardee already ever 

since convincing the judges of the Industry’s Choice awards 

with a breeding in 2006. With the first double flowering 

Calibrachoa variety MiniFamous ® Double Pink Selecta 

accomplished the introduction of the most innovative 

product once before. 

The FlowerPower ® Double varieties could furthermore 

convince in the category “Editor’s Choice”. Editor Delilah 

Onofrey says, “it’s clear Selecta’s 3D double osteospermums 

were the most significant introduction at this year’s 

California Spring Trials.” 

Last year Selecta started offering four double flowering 

varieties in white, pink and purple. The varieties had been 

integrated in the successful FlowerPower ® line. This season 

two more varieties were added to the line: FlowerPower ® 

Double Berry White in white with a high-contrast flower 

filling in a berry-like colour and purple tips and 

FlowerPower ® Double White Bronce in white with a 

romantic bronze-coloured centre. The multi-awarded 

varieties of the FlowerPower ® Double line are easy to 

cultivate and convince with earliness and a very good shelf 

life of the flower. A special characteristic of the double 

flowering Osteospermum varieties is the fact that the 

flowers stay open even under low light conditions. 


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PASSION FOR IP 

CONTACT 

Philippe de Jong 

Tour & Taxis Building 

Havenaan 86C B414 Avenue du Port 

1000 Brussels - BELGIUM 

T + 32 2 426 14 14 - F + 32 2 426 20 30 

philippe.dejong@altius.com 

www.altius.com 

©

Breeder’s exemption 

Does Belgian patent law 

need a breeder’s exemption? 

Over the past years, much has been said about the alleged need 

to introduce a so-called ‘breeder’s exemption’ into patent law. 

This exemption essentially allows a breeder to use plant material 

of a protected variety for the purpose of breeding other varieties. 

Philippe de Jong is a lawyer at Altius (Brussels) 

Under the plant variety rights regime, 

material of these new varieties can also 

be commercialised, unless the new 

variety is an essentially derived, not-distinct or 

hybrid variety or its material “comes under the 

protection of a property right which does not 

contain a comparable provision”. 

Unfair 

Most patent laws do not contain such a “comparable 

provision”. This is because, contrary to 

plant variety rights law, patent law is not based 

on the principle of independence, but rather on 

that of dependence: products that incorporate a 

patented invention, i.e. depend upon it, cannot 

be commercialised without the consent of the 

patent holder. 

This is often considered as unfair and in a 

number of countries legislative action has 

already been undertaken to mitigate the alleged 

harsh effects of patent law in this respect. 

Thus, the French , Swiss and German patent 

laws now contain a statutory exemption for 

breeding new varieties, but this exemption only 

covers the act of breeding, not the subsequent 

commercialisation. 

Also in The Netherlands, a debate is ongoing 

to introduce a breeder’s exemption into Dutch 

patent law. Some want this to be a broad 

exemption, but it appears that it will become 

a limited one. I will not touch upon whether, 

generally speaking, these initiatives are desirable 

or even needed. Much has already been 

said about that. The purpose of this article is 

to look at the particular case of Belgium. Since 

more and more countries are introducing a 

separate breeder’s exemption into their patent 

laws, it is interesting to examine whether a 

similar initiative is at all required. The answer 

seems to be that it is not. 

Restrictive research exemption 

The aforementioned legislative initiatives in 

France, The Netherlands, etc. were triggered 

by the fact that, in each of those countries, a 

rather restrictive research exemption is in place. 

The research exemption under those countries’ 

patent laws applies only to experiments on the 

patented subject-matter (not with). Furthermore, 

in the Netherlands the research exemption 

will furthermore only cover acts carried 

out exclusively for the purpose of experiment. 

The reason for the legal changes in these 

countries has therefore been to allow the use of 

patented material for creating new varieties (i.e. 

research with the patented invention), without 

requiring a license. 

Belgium 

In Belgium, the situation is different. Contrary 

to the countries referred to above, Belgium has 

a rather broad research exemption. According 

to the Belgian Patent Law of 1984 (Article 

28(1)(b)), “the rights conferred by a patent 

do not extend to acts that are committed on 

and/or with the subject matter of the patented 

invention for scientific purposes”. 

The scope of this provision is very similar to 

that of the specific breeder’s exemptions introduced 

in the aforementioned countries. First of 

all, although the terms “for scientific purposes” 

are not defined in the law, there seems to be a 

broad consensus that they should not be interpreted 

too loosely (in the sense of “for purely 

scientific purposes”, i.e. with a view to developing 

knowledge or the testing of an hypothesis), 

but rather broadly (in the sense of “for 

combined scientific and commercial purposes”, 

i.e. with a view to developing new products). 

It is not because the result of an experiment is 

subsequently commercialised, that the experiment 

would suddenly no longer be “scientific”. 

Secondly, the terms “on and/or with” indicate 

that it is allowed to use the patented invention 

as a tool to develop new products, without 

requiring a license from the patentee. In terms 

of plant breeding, this provision thus allows 

a breeder to use patented material for the 

purpose of breeding new varieties. 

Germplasm 

Access to germplasm – the lack of which is 

usually used to argue that the absence of a 

breeder’s exemption in patent law is unfair – 

is therefore guaranteed. Given the principle of 

dependence in patent law, the breeder of the 

new variety will not be able to commercialise 

plant material of that variety to the extent that 

it still contains the patented traits. However, 

this is not much different from the situation 

under plant variety rights law, where the principle 

of independence has been substantially 

eroded since the introduction of the concept 

of essentially derived varieties. According to 

this concept, a new variety whose phenotype 

“conforms essentially” to that of the variety 

on the basis of which it has been bred (i.e. has 

been derived from), will also still infringe the 

plant variety certificate for the initial variety. 

The research exemption under Belgian patent 

law therefore seems to be as close as you can get 

to implementing a breeder’s exemption in plant 

variety rights terms. 

In view of these findings, it can be concluded 

that Belgian patent law does not need a 

separate breeder’s exemption. ||| 


Law case 

On 20 October 

2011 the Court 

of Justice of the 

European Union 

(CJEU) rendered its 

judgment in the so 

called “Greenstar- 

Kanzi Case” 2 

strengthening the 

position of a licensor 

of a Community 

Plant Variety Right 

(CPVR). 

A decision to the 

benefit of European 

title holders 

What are the facts? The 

story of the case 3 is 

quickly told: The case 

is dealing with the apple variety 

‘Nicoter’ (CPVR application filed 

in 2001). 

In December 2004, the licensee 

in ‘Nicoter’ (Nicolaï) sold 7,000 

trees of the variety to Mr Hustin. 

Although the license agreement 

provided that Nicolaï may not sell 

trees to any third party without 

such party having signed an own license 

agreement, the trees were sold 

with no such agreement in place. 

Eventually Greenstar-Kanzi Europe 

NV (GKE) became the licensee 

of ‘Nicoter’ and, after the CPVR 

was granted in August 2005, GKE 

discovered that ‘Nicoter’ apples 

were sold by Mr Goossens who 

had bought them from Mr Hustin. 

GKE filed an action against Mr 

Hustin and Mr Goossens in 

Belgium claiming that the sale of 

the apples constituted a CPVR 

infringement. 

by Thomas Leidereiter 1 

The questions of law 

The Belgian Hof van Cassatie asked 

the CJEU to give a preliminary 

ruling on the following questions: 

(1) Can the holder of a CPVR or 

his licensee bring an action against 

anybody exploiting the protected 

variety if the plant material this person 

is exploiting was bought from a 

licensee breaching his license agreement 

at the time of the sale? (2) Is 

it, in this case, relevant whether the 

person buying such material knows 

about the limitations contained in 

the license agreement? 

The decision 

On the first question, the CJEU 

held that it may constitute a CPVR 

infringement if a licensee is in 

breach of the limitations set out in 

his license agreement at the time 

he is selling plant material of the 

variety. However, there will only be 

an infringement if such limitations 

relate directly to the essential 

features of the CPVR. As the 

CJEU had not been provided with 

the license agreement in question, 

it had to leave it for the referring 

court to assess whether the clauses 

in dispute fell un-der this definition. 

With regard to the second 

question, the CJEU decided that 

for judging on the infringement, it 

is irrelevant whether the third party 

buying the material was aware of 

the limitations contained in the 

license agreement. 

Conclusions for 

growers and breeders 

The CJEU ruling contains a 

positive decision for the holders 


of CPVR titles. For Licensees it should now be perfectly clear 

that their license agreements constitute more than just pieces 

of paper. Breaching them may permanently “contaminate” the 

plant material affected. However, one issue, which has not been 

dealt with in the decision, is also worth mentioning. It seems 

questionable, whether at all a CPVR infringement may have occurred 

in the Greenstar-Kanzi Case. When the trees were sold to 

Mr Hustin in 2004, no CPVR protection had yet been granted 

for ‘Nicoter’. Only provisional protection existed for the variety. 

Such protection, however, does not include the right to prohibit 

the exploitation of a variety. As the CPVR regulation currently 

does not foresee licenses in CPVR applications at all, it might 

prove difficult to establish an infringement in the present case. 

With a view to the current wording of the law, breeders should 

weigh carefully marketing variety constituents of new varieties 

before the actual grant of a CPVR. ||| 

1 LL.M. (Cardiff ), certified IP Lawyer at Luther Rechtsanwaltsgesellschaft 

mbH, Hamburg. 

2 Judgment of the Court of Justice (First Chamber) of 20 October 

2011 in Case C-140/10, reference for a preliminary ruling under 

Article 267 TFEU from the Hof van Cassatie (Belgium), made 

by decision of 25 February 2010, received at the Court on 17 

March 2010, in the proceedings Greenstar-Kanzi Europe NV v 

Jean Hustin, Jo Goossens. See also the Floriculture International 

CIOPORA Chronicle of March 2011, p. 15. 

3 For further information on the case see also P. van der Kooij, 

“Uitputting in het kwekersrecht”, BIE 2011, p. 404; P. de 

JONG, “Uit-putting in het kwekersrecht”, IRDI 2012, p. 91. 

PBR & Royalty, Trademark in & out of China 

professional, independent, 

and experienced PBR & TM attorneys, 

royalty administration & license contracts 

Beijing Hengda Agforest PBR 

(Plant Breeders’ Right) Attorney Co. 

Suncarrier (Beijing) Intellectual Property Rights Firm 

Dr. Shujun YU 

Mobile 0134 3039 8811 / 

0153 6086 9922 

Address Room 504, Building 20, 

66 Guangqu Road, Chaoyang District 

Beijing 100022, CHINA 

E-mail cnpvp@163.com/ 

yushujun@yupvp.cn 

Website www.yupvp.cn 

RAI is worldwide 

representing breeders 

of ornamental plants 

in the field of plant 

breeders rights and 

plant patents. RAI 

advises breeders 

ADMINISTRATION 

INTERNATIONAL 

ROYALTY 

PROFESSIONAL 

PLANT PATENT 

LICENSING 

BREEDERS 

WORLDWIDE 

how to protect 

their varieties, 

takes care 

of filing 

applications, develops 

license agreements, 

collects royalties and 

performs controls. 

Worldwide watching your rights. 

www.rai-worldwide.com 

Office Europe North-America Latin-America Japan 

's-Gravenzande, Holland Fort Myers, Florida, USA Bogotá, D.C. Colombia SA Kashiwa-Shi, Chiba 

Phone (+31) 174-42 01 71 (+1) 239 278 9917 (+571) 601 9018 (+81) 4 7146 5188 

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Law cases 

In October 1996, 

De Ruiter received 

claims by several 

growers, because 

supposedly the 

variety Versilia ® 

Nirpventyel, owned 

by Nirp, showed 

growth deficiencies. 

At that time, De 

Ruiter acted as 

agent for Nirp 

and represented 

this breeder in 

Holland. The 

growers demanded 

compensation 

for the royalty 

and claimed for 

damages. 

by Oscar Peters 

The ‘Versilia’ case 

shines light up the 

liability of breeders 

In the subsequent period, De 

Ruiter settled on behalf of Nirp 

with seventeen ‘Versilia’ ® growers, 

which led to indemnification 

and mutual withdrawal of further 

legal action. One particular grower 

decided not to settle but to sue De 

Ruiter. Afterwards, seven growers 

decided that the compensation 

received by De Ruiter was not 

enough and they summoned their 

respective propagator and sued for 

cancellation of the contract and 

compensation of the propagation 

costs of the Versilia plants made by 

them. In turn, the four propagators 

sued De Ruiter for indemnification 

because the propagators took the 

position that they had no responsibility 

whatsoever with the alleged 

growth deficiencies of the variety 

‘Versilia’. 

The Court of Law decided to treat 

all the cases together: 

• Grower versus De Ruiter 

• Growers versus Propagators 

• Propagators versus De Ruiter 

The Court of Amsterdam 

On September 15th 1999, the 

Court of Amsterdam in an interim 

or incident judgment ruled that De 

Ruiter's defence arguments were 

insufficient, however De Ruiter was 

invited to prove that the growth 

deficiencies were not caused by the 

variety itself, but partially due to 

climate conditions (‘Versilia’ did 

not show any growth deficiencies in 

South America) and to incompetence 

of the grower to grow the 

variety properly (other Dutch growers 

were able to produce the variety 

without suffering from the alleged 

growth deficiencies). 

On March 5th 2003, the Court 

decided that De Ruiter did not successfully 

present its evidence, and 

condemned De Ruiter, a verdict 

which was appealed. 

The Superior Court 

of The Hague 

The Superior Court of The Haque 

in an interim judgment of September 

8th 2005, decided to apply 

the principle of reverse evidence, 

which implies that the burden 

of proof lies upon the defendant: 

De Ruiter. The Superior Court 

also mentioned that it found the 

Ruling by the first Court to be not 

well sustained in the sense that its 

verdict was based on incomplete 

evidence, particularly with regard 

to a lack of investigation on why the 

variety had not shown the alleged 

growing problems under different 

conditions. 

After several attempts to find an 

expert to complement this part of 

the investigation, as well as many 

deliberations and recommendations 

of agricultural and horticultural 

organisations, on September 22th, 

2009 the Superior Court decided 

the following: 

• Despite all attempts, the claimant 

could not find an independent 

expert to undertake further 

research into the cause of growth 

failure; 

• Although not proven, but under 

the assumption that there was 

an existing growth deficiency of 

the variety, and given the fact 

that the variety was successfully 

grown and produced by other 

growers in Holland, France, 

Ecuador and Kenya, the Court 

concluded that the variety had 

apparently genotype characteristics 

that do express under certain 

conditions and not under others, 

which is determinative for the 

phenomena. 

• The Court added that even if 

there were an existing genotype 

defect of the variety, De Ruiter 

could not be held liable for that. 

The Court did consider that De 

Ruiter had carried out trials in 

Holland for a sufficient period 

of time before introducing the 

variety on the market. During 

those trials, no growth deficiencies 

occured. A report issued at 

the time by the Research Station 

for Flower Cultivars in Holland, 

judged the variety as "excellent". 

De Ruiter therefore did not 

know about the alleged defect of 

the variety, nor was the company 

expected to know about it. 

• Moreover, the Court stated that 

the license granted to the growers 

was related to a natural product 

of which not all characteristics 

are or can be known. Since the 

variety does not come with guaranties, 

according to the Court, 

the growers may not expect that 

the variety performs well under 

all kind of conditions. De Ruiter 

had successfully argued that 

each rose variety has more or less 

favourable characteristics, which, 

depending on the climate conditions 

of the production site, are 

being expressed or oppressed. A 

newly introduced variety always 


Therefore the Superior Court overruled 

the Court’s verdict and ruled in favour 

of De Ruiter. 

contains risks, also with regard to its 

growth characteristics and performance. 

The Court also referred to 

the General Conditions of the Dutch 

Association of Rose Breeders (VRV) 

in which Article 3.1 of the mentioned 

General Conditions stipulates 

that damages which result from 

unsound or defect plant material 

which is caused by a disease or other 

conditions and cannot be detected or 

controlled, have to be considered as 

force majeure. Article 2 of these 

General Conditions state that damages 

to the plant is to be considered 

as the risk of the purchaser after 

delivery of the plant, even if Article 

5.6 requires that the seller of the 

plant guarantees that the plant material 

does comply with the generally 

accepted quality conditions expected 

of such plant variety. Article 8.1 

indicates that the seller cannot be 

held liable for the performance of the 

variety in relation to the cultivation 

method used by the buyer. 

Rosa 'Versilia' 

No proven mistakes 

In a parallel verdict, the Superior Court 

analysed the relationship and possible 

responsibility or liability between De 

Ruiter, acting as an agent of Nirp, 

in relation to alleged defects of the 

variety Versilia, and the position of the 

propagator in propagating and selling 

the plant material of the variety Versilia 

to the grower. 

The Court considered that even if the 

growth problems were caused by the 

variety Versilia´s genotype, which under 

certain conditions could have occured, 

at the time of delivery of the plant material 

by the propagator to the grower, 

these characteristics were not shown or 

detectable and the delivered material 

did comply with the common quality 

requirements of the Dutch General 

Control Service for Flower Cultivars 

(NAKB). 

The propagator, according to the Court, 

was not aware of any defects of the 

variety, nor was the company required 

to be aware. 

The propagator had delivered exactly 

what it was supposed to deliver, plant 

material of the variety ‘Versilia’. In this 

analysis, it is important to note that the 

propagator had not made any proven 

mistakes in the propagation process and 

that any alleged deficiency of the variety 

could not be held against the propagator. 

The sales contract of plant material 

between a grower and a propagator, 

even if the variety Versilia is mentioned 

and forms part of the sales contract, in 

absence of any guaranties in such sales 

contract, cannot generate any expectation 

that the variety will be without any 

defect. 

Also, in this case, the Superior Court 

ruled in favour of De Ruiter, and it 

exonerated the propagators from any 

responsibility of an alleged and supposedly 

existing deficiency of the variety 

‘Versilia’. 

The grower and propagators appealed 

to the Supreme Court, which on June 

24th 2011, rejected the conclusions 

and ratified the verdict by the Superior 

Court of Justice. ||| 


Plant breeders 

play a fundamental 

role in the fresh 

fruit sector, by 

providing new high 

value varieties 

with increased 

production, 

better quality of 

fruit, valuable 

organoleptic 

qualities, improved 

presentation, 

durability, etc. In 

order to protect and 

stimulate the efforts 

of these breeders it 

is necessary to have 

an effective system 

for protecting their 

intellectual property 

rights 

by Antonio Villarroel* 


protection for fruits 

The production and marketing 

of fresh fruit is one of 

the fastest growing agribusinesses 

in recent years, with an outstanding 

growth figure of 35% for 

the period 2005-2009 (from USD 

51,686 million to USD 69,562 million) 

according to the statistics 

provided by the International 

Chamber of Commerce (ICC). 

However, the features of these fruit 

varieties lead to some difficulties 

when trying to assure the effectiveness 

of their protection under the 

UPOV system. We set out below 

some of the main problems to 

consider. 

1) Scope of protection: 

a) Object: As already stated, in 

the fruit sector (and also in the 

flowers or vegetables sector) 

the breeders commonly work 

on new varieties whose value is 

apparent mostly in the harvested 

–final- product and not in the 

propagating material. However, 

the UPOV Convention refers 

to the “propagating material” 

(the “constituents” in the case 

of EU Regulation CE 2100/94 1 ) 

instead of the new product as a 

whole, i.e. the variety and all the 

corresponding materials. 

Thus, the breeders’ right does 

not in principle apply to all 

elements of plant material that 

constitute the new variety but 

only to those elements concerned 

with its reproduction. Moreover, 

it excludes, except under certain 

conditions, other elements such 

as the harvested product or 

end products derived from the 

harvested material. Those conditions 

mean both with respect to 

the UPOV Convention and the 

European Regulation 2100/94, 

that the breeder’s right is only 

extended to these elements when 

the following conditions are 

fulfilled: 

i) The “unauthorized use” of the 

propagating material, and 

ii) The absence of a “reasonable 

opportunity” for the breeder 

to exercise his right on the 

propagating material or, 

as the case may be, on the 

harvested material. 

To the extent that neither the 

UPOV Convention of 1991 nor 

the European Regulation nor 

the majority of applicable National 

Laws define what should 

be understood as “reasonable”, a 

considerable and transcendental 

degree of judicial uncertainty 

has arisen, which in the last 

instance leaves the interpretation 

to the Courts of each country. 

b) Content: The TRIPS (traderelated 

aspects of intellectual 

property rights) Agreement of 

the WTO of April 15th, 

1994 (Article 28.1) defines the 

exclusive rights which should be 

conferred by a patent: 

• Manufacture (production or 

reproduction) 

• Use 

• Offer for sale 

• Sale 

• Importation. 

Nonetheless, the sui generis system 

defined by the UPOV does 

not extend to exclusive rights to 

“use” the variety (propagating 

material, plants, harvested or 

end product), but just to the 

following acts in respect of only 

the propagating material: 

• Production or reproduction 

(multiplication), 

• Conditioning for the purpose 

of propagation, 

• Offering for sale, 

• Selling or other marketing, 

• Exporting, 

• Importing, 

• Stocking for any of the purposes 

mentioned in (i) to (vi), 

above. 


The exclusion in the UPOV system of 

such a reference to the “use” of a protected 

variety constitutes an unjustified 

(and unfair) limitation as compared to 

other intellectual rights such as patents 

and in practice curtails the possibilities 

of the breeders of new fruit varieties for 

enforcing their rights. 

2) Provisional protection 

The so called provisional protection 

available during the period between 

the filing or the publication of the 

application for the grant of a breeder’s 

right and the grant of that right appears 

to be recognized under Article 13 of 

the UPOV Convention of 1991, which 

establishes the need to safeguard the 

interests of the breeder, as a minimum 

by entitling him to equitable remuneration 

from any person who, during such 

a period, has carried out acts which, 

once the right is granted, require the 

breeder’s authorization. This principle 

is upheld by the EU in Article 95 of the 

EC Regulation 2100/94. 

Exclusive rights 

to exploitation 

However, these legal precepts say nothing 

about the ability of the breeder to 

oppose the continuing exploitation of 

the variety (for example, by selling the 

harvested material) propagated without 

his authorization during that period, 

once the protection has been granted. 

In practice, this consideration is very 

important due to the prolonged period 

of technical examination involved with 

many species (in particular with vine 

and tree species, which in extreme 

cases in the EC have gone on for up to 

10 years!!) during which the breeder 

is obliged to deliver the variety. We 

have already stated that fruit trees may 

remain in production for long periods 

of up to 20 years in some species like 

apples and citrus. In many cases the 

breeder is not interested in the so called 

“equitable remuneration” (once again 

this term is ambiguous and open to 

interpretation by each judge, with the 

legal uncertainties that this involves) 

of whatever third parties may have 

acted without authorisation before the 

protection is granted, but rather wishes 

to oppose such activity and reserve their 

exclusive rights to exploitation. 

Full protection 

Happily, at least in certain countries 

such as Spain, the prevailing interpretation 

in legal judgments is that provisional 

protection, conceived as merely 

a right to remuneration, should be 

understood as an extension of the full 

protection which displays in plenitude 

all the rights once the title is granted, 

and not just as a pseudo protection 

for its whole duration. As a result, the 

breeders cannot only claim remuneration 

but also oppose the continuing 

exploitation when suffering abuses by 

third parties for acts done completely 

outside their control, assuming that 

legal protection is granted. The opposing 

interpretation would not only 

contradict, in our view, the true spirit of 

the UPOV Convention (see article 7.3 

of the 1978 Act 2 ) but would also heavily 

restrict the effective rights of fruit tree 

breeders and therefore encourage third 

parties with unhealthy intentions to 

reproduce varieties, without the risk 

of their unauthorised operations being 

reversed. ||| 

* Antonio Villarroel is a lawyer and 

general manager of GESLIVE, A.I.E. 

1 Under the European Regulation 

2100/94, ‘materials’refers to both the 

‘constituents’and to the ‘harvested 

material’. 

Constituents: entire plant or parts of 

plants as far as such parts are capable 

of producing new entire plants (such 

as seeds, cuttings, grafts, etc.) 

Harvested material: grains, fruits, 

fl owers, etc. 

2 Provisional protection […] 

Any Member State of the Union may 

provide measures to protect the breeder 

against abusive acts of third parties 

committed during the period between 

the filing of the application for 

protection and the decision thereon. 


Interview 

FCI had the 

honour to speak 

with CIOPORA’s 

Secretary General, 

Dr Edgar Krieger, 

who stressed that 

requesting the 

protection of an 

innovative idea 

is certainly more 

justified than 

allowing the copying 

of everything. “If we 

allow the copying of 

everything, soon we 

will have nothing to 

copy anymore.” 

How much 

open access can 

breeders afford? 

FCI: Dr. Krieger, CIOPORA 

is well known for being a 

strong advocate for effective 

IP protection for plant varieties. 

This seems to be a tough job 

nowadays... 

CIOPORA's Secretary general Dr. Edgar Krieger, “I am confident that the 

ornamental and fruit breeders will find a common position for an IP-system, 

which provides effective long-term and sustainable protection.” 

EK: “To advocate for strong IP 

rights is currently not en vogue. 

Today we see, for example, a loud 

and emotional opposition against 

ACTA, the Anti-Counterfeiting 

Trade Agreement, which has 

the purpose of establishing 

international standards for the 

enforcement of Intellectual Property 

Rights. The opponents even 

claim that free access to all kind 

of information and intellectual 

property is even a human right. 

This is not entirely true. Article 

27, 2 of the Universal Declaration 

of Human Rights says: Everyone 

has the right to the protection of 

the moral and material interests 

resulting from any scientific, 

literary or artistic production of 

which he is the author. So, not 

the free access to everything, 

but the protection of Intellectual 

Property is a human right.” 

FCI: So, breeders who ask for 

effective protection of their varieties 

demand their human rights? 

EK: “Requesting the protection 

of an innovative idea is by all 

means more justified than allowing 

the copying of everything. 

Otherwise, if we allow the copying 

of everything, soon we will 

have nothing to copy anymore.” 

FCI: Some people claim that IP 

protection is a game between 

the big and the small players, 

and that IP protection also must 

protect the small ones. 

EK: “Of course, protection of the 

small players (meaning the weak 

ones) is a request that hardly 

anyone can reject. But in IP protection, 

it is not about small versus big. 

IP protection is about supporting 

innovation. IP-Protection should 

not differentiate whether the innovator 

is small or large. Nevertheless, 

we can also add that Intellectual 

Property, by protecting innovation, 

basically gives a great opportunity 

to small (but creative) companies, 

and also individuals, to build up a 

business without huge investments 

in administration, production or 

infrastructure, since it is based on 

licensing and not necessarily on 

industrial production.” 

FCI: One could say that removing 

or limiting the breeders’ exemption 

would primarily be harmful 

to small breeders. 

EK: “Is that really true? I can easily 

argue that a full breeder’s exemption 

is harmful to small breeders. 

If a small innovative breeding 

company, or even a single innovative 

breeder developed a unique, 

brand-new, outstanding variety, 

how would he be protected if he 

obtained a Plant Breeders´ Right? 

Because of the breeders´ exemption 

his (large) competitors could easily 

access his variety once it is on the 

market and could rapidly breed 

something “similar”. Using their 

marketing power, it would be easy 

for them to squeeze out the initial 

innovative breeder from the market. 

Would you call this effective 

protection of the small ones?” 

FCI: Isn’t this too pessimistic? 

EK: “I personally know an innovative 

breeder who experienced this a 


The more innovative a new variety is, the more protection it deserves. 

decade ago, and he is still disappointed 

with the lack of IP protection 

for varieties. I also heard about 

a breeder who refuses to release his 

unique, brand-new material on the 

market because he feels that it is not 

effectively protected and is afraid 

that he would immediately lose 

control over the material once it is 

made public.” 

FCI: How could this be solved? 

EK: “We need to protect innovation, 

and the more innovative a 

new variety is, the more protection 

it deserves. I dare to say that some 

new varieties on the market are 

not very innovative, but just slight 

improvements of existing varieties. 

Some even only contain cosmetic 

changes. But some varieties are 

truly innovative, such as the double 

flowered Kalanchoe, double flowered 

Osteospermum, the Ice Peach, 

the Kumato or the Sunpatiens. 

Two years ago, I created the term 

“groundbreaking innovations“ for 

such innovations. These groundbreaking 

innovations are currently 

not protected by PBR.” 

FCI: Why not? 

EK: “Everybody can breed with 

both protected varieties and 

groundbreaking innovations. If 

somebody uses a groundbreaking 

variety in his breeding programme, 

i.e. if he crosses and selects, he 

can develop a variety which is 

significantly distinct from the 

groundbreaking variety, having, 

for example, another colour. But in 

this case it would still contain the 

groundbreaking innovation, e.g. the 

double flowering. He can bring this 

new variety on the market without 

restrictions, because the EDV 

protection currently does not cover 

such varieties.” 

FCI: Is Patent Protection the 

solution? 

EK: “If the Plant Breeders´ Rights 

system does not provide the solution, 

the innovative breeders will 

be forced to switch over to patents. 

Although plant varieties cannot 

be protected by patents in Europe, 

we are currently seeing the trend 

of more and more patents being 

applied for plant related inventions. 

Additionally, some governments and 

stakeholders, mainly in Europe, are 

trying to prevent patents in the plant 

world. Moreover, in the U.S., patents 

are being granted, where people 

doubt if they include an inventive 

step or where the ‘inventions’ 

seem be very obvious. This does 

not increase among breeders in a 

functioning patent system. 

One can doubt whether patents are 

the best solution. One of the reasons 

is that patents are much more expensive 

than PBRs. Patent are a costly 

activity as money is needed for prior 

search, patent attorneys and administration. 

Who can pay all these 

costs? Currently the costs present a 

natural barrier for small inventors to 

obtain patents. Playing the devil´s 

advocate, I could say: Currently, the 

small innovators are especially badly 

off: The PBR is not strong enough 

to protect their innovations, and the 

patent is too expensive for them. Is 

that fair?” 

FCI: So, what could the solution 

be? 

EK: “In general, the UPOV Plant 

Breeders´ Rights system is considered 

as the tailor-made protection 

system for varieties. In my opinion, 

considering the balance between 

open access and exclusivity in the 

UPOV system, the focus is on open 

access, incarnated in the breeders’ 

exemption. This weakens the protection 

of existing innovations. In 

fact, when speaking with breeders, 

more and more are questioning 

the current breeders´ exemption 

and some even would like to have 

the breeders’ exemption removed 

completely.” 

FCI: Removing the breeders’ 

exemption completely sounds 

quite tough… 

EK: “Indeed. When we look for 

solutions in order to protect innovation, 

we should be careful and 

should not throw out the baby with >>> 


Interview 

the bath water. Another approach is 

to suspend the breeders’ exemption 

for a defined period of time, for 

example five, eight or ten years.” 

FCI: How can that work? Who 

can control if I use a protected 

variety in my lab? 

EK: “The breeders’ exemption consists 

of two components: The access 

to protected material and its use for 

further breeding and the marketing 

of the breeding result. While the first 

component can be done in secret, the 

marketing of the product, necessarily 

occurs in public. Using modern 

molecular techniques it would be 

rather easy to control if a variety is 

on the market which has been bred 

on the basis of an existing protected 

variety.” 

FCI: What would be the main 

result of such an approach? 

EK: “The main result of such an 

approach would be to give a longer 

period to the first breeder during 

which he can enjoy his exclusive 

right. When the PBR system was 

created in the 1950s, the lifecycle of 

varieties was longer than today, and 

it took much longer to breed a new 

variety, particularly a variety which 

showed a high degree of similarity 

to an existing one. Nowadays, this 

can be done within two years. This 

is too short to earn a sufficient return 

on investment, particularly not for 

groundbreaking innovations. In this 

regard, this approach would be a 

reaction to the changes in breeding 

technology and the speed of 

breeding. Furthermore, the approach 

would not stop the development of 

new varieties, because free access 

to the protected material would 

remain.” 

FCI: If the breeders´ exemption 

were to be suspended, would that 

mean that during an ‘exclusive 

exploitation period’ nobody would 

be allowed to market a variety 

bred on the basis of a protected 

initial variety anymore? 

EK: “Nobody would be allowed to 

market such a new variety without 

Maybe varieties 

could be classified 

according to their 

level of innovation. 

the authorisation of the title holder 

of the initial variety. If the breeder 

of the initial variety would grant a 

license, the new variety could, of 

course, be exploited.” 

FCI: Are there any further possible 

solutions? 

EK: “I mentioned before that the 

more innovative a new variety is, the 

more protection it deserves. Maybe 

varieties could be classified according 

to their level of innovation. The 

tenth red variety of a species, even 

if it is slightly improved in one or 

two characteristics, may deserve less 

protection than a brand-new interspecific 

hybrid. I would imagine that 

experts can easily agree on whether 

a variety is a mere improvement or 

a groundbreaking innovation. For 

groundbreaking innovations the 

protection could be stronger.” 

FCI: In the patent laws of most 

EU countries, the U.S. and Japan 

there is no such thing than the 

breeders´ exemption, i.e. nobody 

is allowed to use patent protected 

material for further breeding. 

In some countries, e.g. France 

and Germany, patent protected 

material can be used for breeding, 

but the result is not allowed to be 

marketed if it still contains the 

patented invention. 

EK: “In order to promote overall 

innovation breeders should continue 

to have free access to protected material 

for further breeding and also to 

material which contains a patented 

invention. But if the breeding result 

comprises the patented invention, 

its marketing should require the 

authorisation of the patent holder. 

This approach also sufficiently protects 

the patent holder, whose main 

interest is to cover the marketing of 

any commercial plant that comprises 

his patented invention. Therefore, 

the German and French patent approach 

might be a model for future 

handling of the issue. Also, in the 

PBR system the critical part is not 

the free access to protected material, 

but the (almost) free marketing of 

the results of the breeding work. 

Therefore, another partial solution 

could be the strengthening of the 

EDV-concept. In fact, the EDV 

concept already constitutes a limitation 

to the breeders´ exemption, 

because it limits the free exploitation 

of the breeding-result, if the newly 

developed variety is essentially derived 

from a protected initial variety. 

This limitation is effective for the 

entire duration of the protection of 

the initial variety for up to thirty 

years. But the current EDV concept 

cannot protect a groundbreaking 

variety, if this is used in a breeding 

programme, including crossing and 

selection, and a significantly different 

variety – including the groundbreaking 

innovation – is bred.” 


FCI: But the breeders do not seem 

to be united in their interpretation 

of the EDV concept. 

EK: “In fact, there are different views 

on what is an EDV is. The main reason 

for this is the unclear language 

of the EDV provision. If you find 

indefinite terms in a law, such as 

‘essentially’ and ‘predominantly’, this 

significantly weakens the clarity of 

the law. On the other hand, different 

breeders have different business 

models and interests, which makes 

it more difficult to find a common 

standpoint. Nevertheless, the breeders 

are jointly aware of their need for 

stronger protection and CIOPORA 

has approved a position on EDV 

which surely represents the opinion 

of the majority of its members.” 

FCI: Some people claim that if the 

breeders´ exemption were limited, 

this would foster the creation of 

monopolies. 

EK: “Do we have monopolies in the 

automotive industry? The IP Protection 

in the automotive, pharmaceutical 

or electronic industry is patents, 

hence a much stronger protection 

than the PBR system, and we do not 

have monopolies there. Currently we 

have a full breeders’ exemption, and 

nevertheless we see a rapidly growing 

number of horizontal and vertical 

mergers in the business, resulting in 

larger and larger companies. In the 

U.S. plant varieties are protectable 

by patents and plant patents, and do 

we have monopolies there? No. IP 

Protection is not about monopolies, 

it is about the protection of innovation. 

With the breeders´ exemption 

it is easy for companies to take-over 

innovations from others, at a very 

low price, in fact for nothing. If, for 

example, a small innovative company 

in the field of biotechnology develops 

a high-level innovation and protects 

it by Patents, the competitors have to 

pay a market price if they want to use 

the invention or – what often happens 

– they buy the whole company. 

In both cases the small innovators 

receive a fair return for their investment 

and for their creativity.” 

FCI: If the PBR system were 

changed as you describe, would 

this solve all the breeders’ problems? 

EK: “IP protection works in two 

directions: horizontally and vertically. 

Horizontal protection means 

protection against easy take-over 

of the variety by a competitor. The 

approaches I described might solve 

many of these issues. Vertical protection 

means downstream protection 

against unauthorised propagation, 

the production of harvested material 

and the trade with such illegal 

products. Here, we have other issues 

which are equally negative for 

breeders, such as the weak protection 

of harvested material and the 

absent protection for processed 

material, not to mention the huge 

difficulties breeders have in enforcing 

their rights in many countries. 

CIOPORA continuously strives to 

close these gaps as they harm the 

entire industry: without innovation 

and its effective protection breeders, 

growers, wholesale and retail would 

be unable to increase their turnover, 

as has been happening in the last 

decades.” 

FCI: Do you expect that all breeders 

would support a strengthening 

of the PBR system in the way you 

described? 

EK:. “CIOPORA is the international 

organisation of breeders of 

vegetatively reproduced ornamental 

and fruit varieties. Breeders of such 

varieties hold the vast majority of all 

PBR titles in the world and are very 

active in IP protection. The breeders 

within CIOPORA will soon develop 

a position for the solution of their 

problems. It will require discussions, 

because, particularly in regard to 

the horizontal protection, there are 

many different interests. However, 

I am confident that the breeders will 

find a common position for an IP 

system, which provides long-term, 

sustainable, effective protection, by 

taking into account the changes in 

the industry and in the breeding 

techniques and the fact that, for the 

Using modern molecular techniques it will 

be rather easy to control if a variety is on the 

market which has been bred on the basis of 

an existing protected variety.” 

developed economies, innovation is 

one of the few tools to stay competitive. 

Regarding vertical protection, 

the position of CIOPORA has 

been clear for more than fifty years: 

Breeders need more effective downstream 

protection.” 

FCI: Will UPOV and the national 

governments be happy to change 

the situation? 

EK: “In my experience, both UPOV 

as well as many national governments 

are very open and receptive for 

the views of the breeders. Nevertheless, 

it sometimes seems that change 

is not a high priority of governmental 

organisations.” 

FCI: Dr. Krieger, you pin-pointed 

many open issues in the PBR 

system. Can they be solved under 

the UPOV System? 

EK: “Probably not all of them can 

be solved under the UPOV 1991 

Convention but of course they 

can be solved the way UPOV and 

the stakeholders have solved past 

challenges: by an evolution of a 

system that has proven to be able to 

adjust itself from time to time, in 

accordance with an ever changing 

economical, technical, legal and 

social environment.” ||| 


Patents 

Parallel to the 

progress of genetic 

engineering 

in relation to 

living material, 

patentability of 

plants and plant 

material has 

received greater 

attention. This 

attention is 

supported by the 

attempt of large 

breeding companies 

to obtain patents for 

new breeding results 

and for methods of 

producing plants, 

resulting in plant 

material with 

desired specific 

characteristics. 

by Dr. Gert Würtenberger 

Patents for plant- 

related innovations 

in Europe 

Due to the specific protection 

of plant varieties 

provided by the UPOV 

system, patentability of inventions 

related to plant varieties and 

essentially biological methods for 

the breeding of plants has been 

excluded. Thus, protection for plant 

varieties is possible provided that a 

breeding result is not limited to a 

specific variety and fulfils the usual 

patent requirements of “novelty”, 

“result of inventive activities” 

and “commercial applicability”. 

Equally, patent protection is in 

principle open for microbiological 

processes or products resulting of 

such processes. “Essentially biological” 

is defined in the relevant laws 

and rules as “entirely consisting of 

natural phenomena such as crossing 

or selection.” 

Biological breeding 

Patentability of plant varieties is 

not only excluded if the same are 

the result of biological breeding 

methods but equally if they have 

been obtained through genetic 

engineering methods as far as such 

working results have to be defined 

as a variety. This encompasses all 

breeding varieties, including clones, 

lines, traits and hybrids, which 

are sufficiently distinct from other 

varieties, uniform and stable. As the 

special protection for plant varieties 

relates only to the plant as such, 

patent protection for plant cells, for 

example, in principle is possible as 

well as microbiological products in 

the sense of the patent laws. 

Guidance cases 

As for the patentability of methods 

to create new plants or plant material 

and the patentability of such 

methods, this question is more 

complex than the patentability of 

plant material. 

The difficulties in deciding whether 

patent protection should be granted 

Poinsettia breeding work. 

Photo credits: Selecta Klemm 

for breeding methods has become 

evident. Two of the most recent 

attempts of an internationally 

active breeding company to obtain 

a patent for methods of producing 

plants, known in the public 

under the catch words “Broccoli” 

and “Tomato” cases, give some 

guidance as to what extent such 

breeding methods may be open to 

patent protection. 

In short, in the “Broccoli” case, 

the applicant applied for grant of 

a European patent for a method 

for the production of Brassica 

oleracea with certain levels of 

glucosinolate(s) pertaining a number 

of (back)crossing and selection 

steps in which molecular markers 

were used. Certain forms of 

glucosinolate(s) are assumed to have 

anti-cancerous activities. 

In the “Tomato” case patent protection 

was claimed for a method 

of breeding tomato plants which 

produce tomatoes with reduced 

fruit water content containing steps 

of crossing, collecting, growing, 

pollinating and selecting. 

Markers 

While in the “Broccoli” case the 

process for which the applicants 

applied for grant of a European patent 

not only included interference 

or activities of human beings but 

also technical means in the form 

of markers, the breeding process 

claimed for protection in the 

“Tomato” case involved only 

activities of human beings. 

In both cases, therefore the question 

arose whether the methods 

and the products resulting from 

these methods were essentially 

biological in the aforementioned 

sense. Moreover, in the “Broccoli” 


Photo credits: Selecta Klemm 

Pelargonium breeding section at Selecta Klemm. 

Dr. Gert Würtenberger 

case the additional question had to 

be answered whether application 

of markers in the breeding process 

per se is an element which allows 

the conclusion that the breeding 

method was not of an essentially 

biological nature. 

European Patent Office 

The enlarged Board of Appeal of 

the European Patent Office which 

was asked to decide on these issues 

emphasised that a non-microbiological 

process for the production 

of plants which contains or consists 

of the steps of sexually crossing, 

the whole genomes of plants and of 

subsequently selecting plants is in 

principle excluded from patentability 

as being essentially biological. 

The fact that such process contains 

steps of crossing and selection 

which have to be regarded as 

technical in their nature does not 

change the qualification of the 

afore-mentioned steps as essentially 

biological. In contrast, if an additional 

step of a technical nature 

such as introduction of a trait into 

the genome or a modification of 

a trait in the genome of the plant 

produced, such process would not 

be excluded from patentability. The 

introduction or modification of 

such a trait would not be regarded 

as result of the natural mixing of 

the genes of the plants chosen for 

sexual crossing. 

Decision 

In light of the decision of the enlarged 

Board of Appeal of the European 

Patent Office it is clear that 

if the desired change of the plants 

is solely based on sexual crossing, 

the process is excluded from 

patentability. Although crossing, 

selection, backcrossing and further 

steps in the breeding process 

involve human interference, the 

process as such nevertheless has to 

be regarded as essentially biological 

as it mainly depends on natural 

phenomena. 

On the other hand, a process 

involving inserting a gene or trait 

into a plant by genetic engineering, 

in principle, is patentable as it does 

not rely on recombination of whole 

genomes in the natural mixing of 

plants. However, such a claim may 

not contain crossing and selection 

steps. Otherwise, such a process 

would be regarded as essentially 

biological and, thus, excluded by 

law from patentability. 

Case-to-case basis 

The decisions of the enlarged 

Board of Appeal of the European 

Patent Office, thus, have brought 

some clarification to the extent 

to which breeding methods or 

methods creating new plant material 

not limited to specific plant 

varieties will be open to patent 

protection. The problem remains, 

however, what the necessary additional 

technical interference within 

the method of sexual crossing and 

selection needs to be in order to 

make such process open to patent 

protection. For the time being, this 

can only be decided on a case-tocase 

basis. ||| 


Opinion 

PlantHaven is an 

independent agency 

assisting plant 

breeders worldwide 

in bringing their 

new plant varieties 

to market. What 

IP challenges do 

company owners 

Geoff and Maureen 

Needham foresee for 

the future? 

PlantHaven values 

CIOPORA’s accessibility 

and communications 

Geoff Needham 

When Maureen from New 

England and Geoff from 

“old” England embarked 

on a lifelong career in the nursery 

industry, they had no idea where 

that road would take them. 

For the first twenty years, Geoff 

and Maureen were successful nursery 

growers in Sussex, UK, being 

able to expand their business steadily 

as members of the Farplants 

marketing cooperative of which 

Geoff was for some years managing 

director. Geoff and Maureen 

were witnesses to the early days of 

new variety promotion in the UK 

garden center market which gave 

them an understanding of the profit 

potential offered by promotable and 

exciting new plant varieties. These 

experiences and early contacts led 

to the Needham’s decision in 1997 

to emigrate (for Maureen, to return) 

to America where they established 

breeders’ agency PlantHaven, Inc. 

in Santa Barbara, California. 

Profitable relationships 

From its very beginnings, PlantHaven 

sought to establish profitable 

relationships between creative 

independent breeding programmes 

and innovative propagators, growers 

and marketers. Due to the 

diversity of PlantHaven varieties 

the company has developed an 

intentional reputation for creating 

markets and production opportunities 

for niche crops of above-average 

margin and surprising volume 

potential. Growers tell PlantHaven 

that niches are becoming more 

interesting, and PlantHaven likes to 

keep a constantly changing treasure 

chest of opportunities for growers. 

Geoff & Maureen Needham 

Closest possible 

interaction 

The PlantHaven method involves 

closest-possible interaction with 

each breeding program - to the 

point that PlantHaven’s market 

expertise becomes integral to the 

breeding and new development 

process. PlantHaven’s own team 

includes experienced former growers 

with research and technical 

expertise, plant marketers and 

project managers. Each project 

goes through all the classic stages 

of new product development from 

market research to secure private 

trials, then feedback to the breeding 

program prior to near-market trials 

and the crafting of a long term 

value maximizing strategy. Directly, 

or through third party contracts, 

PlantHaven’s service includes 

clean stock holding, plant variety 

protection, trademark registration, 

licensing, promotion and royalty 

administration. 

Attention to detail 

In deciding which breeding projects 

to accept, PlantHaven looks for 

focus and attention to detail, with a 

commitment to true novelty. If the 

project involves a less well-known 

genus then the prospect of achieving 

low cost production in relation 

to perceived value becomes critical. 

PlantHaven has, or is willing to 

develop, the expertise to manage 

a wide range of breeding programmes, 

from vegetative annuals 

to volume perennials to impulse 

shrubs and trees. As former growers 

themselves, Geoff and Maureen are 

determined that a “PlantHaven” 

variety is a proven and profitable 

variety, with a long life expectancy. 

New product development is an 

expensive and sometimes risky undertaking 

for everyone involved in 

the process, including the licensees 

who commit their own substantial 

resources to commissioning new 

varieties. 


PlantHaven 

International 

In 2011, PlantHaven became Plant- 

Haven International, signifying 

that the company has expanded its 

services worldwide as the propagation, 

distribution and marketing of 

high volume new genetics has itself 

become global, requiring a unified 

management approach. PlantHaven 

applies an international perspective 

from the outset, resulting in 

greater efficiencies and reduced 

management costs for the breeding 

program. PlantHaven’s international 

clients include award-winning 

breeding programmes PENHOW 

(Diascias and Nemesias), REAL- 

FLOR (Gaillardia and Leucanthemum), 

WHETMAN PINKS 

Dianthus, already brands in their 

own right – together with The University 

of Hawaii (Colocasias) and 

North Carolina State University 

(Cercis) whose breeding is the very 

best of its class. 

CIOPORA’s great value 

Looking to the future, PlantHaven 

understands that its independent 

breeder clients expect a high degree 

of integrity and professional competence 

in order to advance and 

protect their position in a rapidly 

changing and complex multinational 

industry. Familiar disciplines 

of plant variety protection must 

be combined with an appreciation 

of branding strategies in which 

breeder, producer and retailer all 

wish to stake a claim and build 

value. Geoff and Maureen and 

team are enjoying meeting these 

new challenges, in the knowledge 

that their clients can continue to 

focus on their breeding endeavours. 

Fortunately, access to information 

and professional assistance is 

readily available to any company 

that wishes to constantly improve. 

As PlantHaven approaches its first 

ten years of membership in CIO- 

PORA, Geoff and Maureen find 

ever greater value in networking 

with and learning from industry 

peers at CIOPORA’S meetings, 

workshops and seminars. The common 

objectives and the camaraderie 

of CIOPORA members is always 

evident, and new members with 

new experiences are welcomed 

and encouraged. The CIOPORA 

Board and working groups devote 

exceptional time and expertise to 

advancing the quality and accessibility 

of international plant variety 

protection, identifying trouble spots 

and weak links for future targeted 

action. Geoff and Maureen have 

come to particularly value the 

accessibility and communications 

from Dr. Krieger and his colleagues 

in the Hamburg office. 

Whetman Pinks 

Future 

Geoff and Maureen see that breeders’ 

returns are under pressure from 

increasing costs of variety protection 

whilst average variety market 

life reduces. In consequence, 

breeders are choosing not to protect 

all of their releases: a policy which 

is fraught with risk for the very system 

of variety protection for which 

breeders and CIOPORA fought for 

so long. 

Geoff and Maureen are also concerned 

that the US is effectively a 

bystander in the process of evolving 

a global system of plant variety protection. 

The US Plant Patent system 

is eighteen years short of its centenary, 

the oldest plant variety system 

in the world – but has barely advanced 

since its enactment. Whilst 

the protection of varieties by patent 

is a great asset, not least for enforcement, 

the US industry should begin 

to weigh the deficiencies in scope 

for the future needs of professional 

breeding programmes and therefore 

the industry itself. Controversially 

perhaps, PlantHaven favors an early 

study of the feasibility of achieving 

a “best-of-all-worlds” combination 

of patent protection together with 

a true minimum distance UPOV 

regime, resulting from high quality 

variety examination within the US 

or by the taking over of suitable 

foreign examinations. 

No doubt, some of these challenges 

will feature in the meetings and 

discussions at CIOPORA’s AGM 

in Miami. Geoff and Maureen will 

be there! ||| 


Company profiles 

Founded in 1897, 

the Conard-Pyle 

Company celebrates 

its 115th year in 

business this year. 

In its early years 

the company was 

primarily a general 

retail mail order 

nursery with a 

specialty in roses. 

Over time, it evolved 

into a wholesale 

nursery growing 

a wide range of 

hardy ornamental 

plants, and more 

recently a licensing 

and genetics 

company specialized 

in representing 

breeders around 

the world and 

directly breeding 

woody plants 

and perennials. 

In addition, the 

company produces 

plugs, liners and 

bare root plants 

of its protected 

varieties in its 

facilities in the 

United States in 

Pennsylvania and 

California. 

Conard-Pyle celebrates 

its 115th anniversary 

Throughout its history, The 

Conard-Pyle Company 

has worked with breeders 

around the world. The most significant 

of these relationships is with 

the rose breeding firm, Meilland 

International, with which it is also 

celebrating an anniversary in 2012: 

working together for 80 years. 

Over this period, Conard-Pyle has 

introduced and patented more than 

250 varieties created by Meilland, 

including the world’s most famous 

rose, Peace, and other enduring 

varieties like the Meidiland series of 

shrub roses and most recently the 

Drift series of groundcover roses. 

Both professionals 

and amateurs 

Although professional breeders 

represent most of the varieties 

introduced over the years by 

Conard-Pyle, there have been 

several amateur breeders whose 

varieties the company has brought 

to market as well. Kathleen 

Meserve, a housewife from Long 

Island, was breeding Ilex in her 

back yard as a hobby. She sent a 

number of them for test at Conard- 

Pyle, and over the years the nursery 

patented and marketed over a 

dozen of her creations, including a 

group called The Blue Hollies and 

another called The China Hollies, 

both of which set new standards for 

ornamental merit and hardiness. 

Bill Radler, the head of a botanic 

garden by profession, had been 

Greenhouses at Conard-Pyle 

breeding roses in his basement 

for years and sending the best to 

Conard-Pyle. One of these, a bright 

red, very floriferous and highly 

disease-resistant shrub rose, stood 

out above all others at Conard- 

Pyle’s Pennsylvania and California 

test fields. Introduced as The Knock 

Out® rose, it revolutionized the 

rose industry in the USA. In the 12 

years since its introduction over 50 

million plants of The Knock Out® 

series of roses have been sold. 

Perennials and PBR 

Most recently, Conard-Pyle has 

been actively and aggressively 

breeding perennials and shrubs 

through its NovaFlora division. 

Originally created as a biotech 

company to breed ornamentals via 

genetic engineering, NovaFlora is 

now focused on bringing advanced 

technology to traditional breeding. 

Two dozen patents have been, or 

soon will be, applied for on its 

recent work. 

Conard-Pyle believes that a strong 

system of plant protection based 

on plant breeders’ rights and plant 

patents is the best way to encourage 

innovation in the green industry, 

which will in result wonderful new 

plant varieties for consumers and 

a means for rewarding the creative 

hard work of breeders around the 

world. ||| 

Most recently, Conard-Pyle has been actively and aggressively 

breeding perennials and shrubs through its NovaFlora division. 


When he first 

came to the States 

in 1935, Francis 

Meilland, (Alain’s 

father),and his 

American friend 

Robert Pyle (from 

The Conard-Pyle 

company ) could 

not imagine that 

close to eighty 

years later their 

story would still 

serve the purpose 

of illustrating 

Intellectual 

Property applied 

to vegetatively 

reproduced plants 

(ornamentals and 

fruit varieties). 

Meilland believes in 

innovation, IP, peace 

and friendship 

Developed prior to World 

War II by Francis Meilland, 

‘Golden State’ (US 

Pl.Pat. 303) was his first rose for 

the United States (*). Following 

this, came ‘Peace’ which remains a 

symbol for the House of Meilland 

as it was one of the early varieties to 

be patented in the USA (US Pl.Pat. 

591) and widely distributed. That 

variety provided the basis of a long 

term vision and strategy based on 

IP rights: first create and/or select 

novelties, and then ensure their 

peaceful exploitation through the 

relevant intellectual property tools 

available. 

Exciting results 

Since then, because rose breeders 

are always looking into the future, 

the House of Meilland has invested 

lots of energy, human and financial 

resources and of course passion to 

widen the usage of its rose genetics 

to serve different objectives, always 

hoping that this year’s cross-pollination 

will yield exciting results 

for rose lovers to enjoy, eight to ten 

years from now. 

Famous varieties and brands have 

been developed over the past 

years including Meceisar PAPA 

Robert Pyle (President of Conard Pyle) and Francis Meilland in a 

production field of the PEACE rose in 1948 in the West Grove, PA. 

MEILLAND®, Meivildo YVES 

PIAGET® or Meiviolin EDEN 

ROSE® / PIERRE DE RONSARD® 

in the Traditional Garden, but 

also the wide palette of landscape 

roses, with the MEIDILAND® and 

KNOCK OUT® series, as well as the 

Fresh Flower varieties, among which 

the latest red Tea Hybrid Meikatana 

SAMOURAI®, was protected and 

distributed in 47 countries. 

DRIFT ® Roses 

Recently, in addition to these innovations, 

the DRIFT® Roses come 

as “the next big thing for small 

gardens”, being a cross between 

full-size groundcover roses and miniature 

roses, and consumer demand, 

thanks to their toughness, disease 

resistance and repeat-blooming 

nature. 

In the present year 2012, Francis 

Meilland would have turned 100 

years (if he was still alive). As one of 

the funding members of CIO- 

PORA, one can assume that, as a 

breeder and pioneer, he would have 

conveyed his great acknowledgements 

to CIOPORA for being 

permanently dedicated to the 

acquisition and sharing of IP knowledge 

to protect new varieties for 

the benefit of all those concerned in 

the ornamental and fruit sectors. 

Just believe in innovation, IP and 

also peace and friendship. ||| 

(*)The first plant ever patented in the 

US, under the 1930 Plant Patent 

Act, is a rose variety (US Pl.Pat.1) 

New Dawn. 


International PBR systems 

As a country with 

the goal of becoming 

an agricultural 

export powerhouse, 

Chile cannot avoid 

focusing attention 

on intellectual 

property rights, 

which profoundly 

affect this goal and 

these commercial 

activities. Such 

awareness is not yet 

enough in Chile, but 

hope exists for an 

improvement in the 

future. 

by Gabriela Paiva 

IPP in Chile and new 

related to PBR and agr 

Chile is a leading country in 

the southern hemisphere 

in counter-seasonal exports 

of commercial fruit. Chile is the 

largest exporter of table grapes in 

the world, the largest exporter of 

apples in the southern hemisphere 

and also a very substantial exporter 

of cherries, peaches, nectarines, and 

plums. 

Main issues 

Currently, the main issues in Chile 

are regarding intellectual property 

(IP) rights for plants and seeds is 

the pending law bill authorizing 

signature and ratification of the 

UPOV ’91 Treaty and the related 

law bill to modify existing Chilean 

Law 19.342 to adapt it to the 

UPOV ‘91 Treaty. 

Another important issue is the 

strong actions in Chile in the field 

of anti-trust and free competition 

in agriculture. This past year, the 

Economic National Prosecutor 

in Chile has imposed record antitrust 

penalties on the agricultural 

sector. Also, in 2011, the Chilean 

agricultural industry successfully 

worked with anti-trust authorities 

in South Korea to obtain large fines 

for anti-trust activities in South 

Korea by Zespri (the New Zealand 

kiwi marketing desk) that damaged 

the South Korean consumers and 

the Chilean agricultural industry, a 

case which has global consequences 

for agricultural IP owners and their 

licensees. 

Current Status 

of UPOV ’91 

There are two law bills pending 

before the Chilean Congress related 

to the UPOV ’91 treaty. One is a 

bill for the Chilean Congress to approve 

the ratification of the UPOV 

’91 Treaty, allowing the Chilean 

President authorisation to be able to 

ratify the Treaty. The other pending 

law is the modification of the 

current Chilean Law 19,342 to 

adapt it to UPOV ‘91. 

A draft of this second law bill was 

sent to Congress by the Government 

on December 22, 2008. 

Chile was obligated to ratify 

UPOV ‘91 before January 1st 

2009, according to the IP Chapter 

in the Free Trade Agreement 

between Chile and the United 

States of America. Chile also had 

the same obligation and deadline 

in Free Trade Agreements signed 

with Japan and Australia. 

Delay 

Currently, both the pending law 

bills are being revised by the Chamber 

(Cámara de Diputados) and 

have passed to the Senate, which 

has already revised the proposed 

text. During the Senate revision, 

a group of senators filed a lawsuit 

with the Constitutional Tribunal 

of Chile arguing that the ratification 

of UPOV ‘91 was contrary 

to Convention 169 of the Work 

International Organisation, another 

treaty ratified by Chile that protects 

property and other rights of the 

native people of Chile. 


developments 

icultural products 

trust trade activities by Zespri, their 

New Zealand competitors. Zespri 

had been leveraging their intellectual 

property rights for various kiwi 

varieties through contracts with 

South Korean retailers, in which 

the retailers were asked to exclude 

Chilean kiwi products from their 

stores. 

The Chilean exporters successfully 

demonstrated to the South Korean 

antitrust authorities that the South 

Korean consumers suffered price 

damage (in the form artificially 

high kiwi fruit prices) because of 

Zespri’s conduct. Based on the 

Chilean exporter’s claims and 

their economic information, the 

South Korean antitrust authorities 

rescinded all of Zespri’s offending 

contract clauses, and levied a 

fine of almost $400,000 USD for 

their illegal activities. This case is 

a model for how antitrust laws can 

be used to enhance and maintain 

healthy competition between the 

agricultural industries in competing 

countries. 

If you need more information just 

contact me at gabriela@paiva.cl. ||| 

The Constitutional Tribunal issued 

a formal decision that the articles 

in the law bill pending to adapt 

Chilean Law 19.342 to UPOV 

’91, did not violate the Chilean 

Constitution and were not contrary 

to any part of Convention 169 

because they do not adversely affect 

indigenous people’s rights in Chile. 

Now the discussion on the pending 

law bills is in its final stages in Congress 

and should be passed during 

the year 2012. However, the delay 

of more than three years has been a 

great detriment to the rights of the 

breeders, licensors and licensees of 

plant variety protection registrations 

in Chile. 

Chilean Antitrust 

Enforcement Actions 

In 2010, a new government was 

elected in Chile, and one of its goals 

has been to increase the enforcement 

of free competition law. The 

Economic National Prosecutor’s 

office has been very active since 

then, and they have investigated 

and imposed the largest fines in 

Chile’s antitrust history (hundreds 

of millions of U.S. dollars) in the 

case of pharmacy collusion and in 

the on-going case of collusion in 

chicken industry association. 

Chile has also established a new 

focus in Agricultural Antitrust 

Prosecution, which works under 

the authority of the Economic National 

Prosecutor. The Agricultural 

Antitrust Prosecution is currently 

investigating the activities of several 

of the major agricultural industries 

in Chile such as milk, corn and the 

mentioned chicken industry association. 

These are areas that must be 

considered in any licensing activity 

in Chile. 

The antitrust laws of South Korea 

were also successfully used by the 

Chilean kiwi exporters, when they 

complained about unfair and anti- 

Gabriela Paiva 

* Gabriela Paiva H., is executive 

director of Global Licensing 

Association Ltda in collaboration 

with Patrick H. Ballew, U.S.A. 

consultant of the same. Both are IP 

lawyers at Paiva & CIA (Chile) and 

Ballew Law in the United States. 

More information at www.globallicensing.cl 

and www.paiva.cl 

All rights reserved Gabriela Paiva 

and Patrick H Ballew, March 2012. 


LAW FIRM WITH 

FLOWER POWER 

Smithuijsen Winters & De Vries. Solicitors specialized 

in the horticultural and agricultural sector, including fl owerbulbs. 

- litigation and dispute resolution 

- plant breeder’s rights 

- licensing 

- contracts 

50 years of legal expertise in agri & bulbs. 

Clients in Europe, Australia, Asia, South America and Africa. 

Offi cial legal adviser of the Royal General Bulb Growers’ Association (KAVB). 

Your contact solicitor: Lucas Koning. 

Located near Amsterdam Airport 

t 0031 23 517 51 00 w swdv.nl 

The same 

in green? 

www.vondst-law.com 

Your innovation. 

Our passion. 

advocaten 

advocaten 

Vondst 

Vondst is a compact specialized law firm 

based in Amsterdam that deals exclusively 

with intellectual property law, ICT, 

pharmaceuticals & life sciences. 

Vondst knows IP 

Patents and technology, plant variety 

rights, trademarks, copyrights and product 

design. 

Vondst knows Horticulture 

We represent and assist a wide range of 

clients within the horticultural and agricultural 

sector including flower and seed 

breeders, growers, packaging companies 

and machine manufacturers. Our firm is a 

member of Plantum NL and CIOPORA. 

Vondst knows Plant 

Variety Rights 

We assist in maintaining, exploiting 

and enforcing PVRs in and outside the 

EU. We have extensive experience in 

litigation concerning the enforcement 

of PVRs, including cases involving 

essentially derived varieties (EDVs). 

We also advise and litigate about the 

granting of Dutch and Community 

PVRs, questions of variety naming and 

licensing issues. 

Find out more? 

Visit www.vondst-law.com or call 

+31 (0)20 5042000 and ask for 

Tjeerd Overdijk or Hidde Koenraad.

AGM 2012 

Intercontinental 

knowledge-transfer 

and networking 

are the central 

notions of the 

upcoming Annual 

General Meeting of 

CIOPORA, which 

will take place in 

Miami Beach from 

April 23 to 27, 2012. 

While with regard 

to the content the 

focus of the AGM 

will be on novelties 

and challenges of 

IP Protection for 

plant innovation in 

the Americas, the 

educational events 

will constitute the 

core form this year’s 

AGM week. 

by Anna Kaehne 

Learning, networking 

and AGM event set 

for April 23-27 

The CIOPORA programme 

in Miami Beach will set 

off with the Intellectual 

Property Seminars designed to 

meet the individual interests of 

the participants. The CIOPORA 

members mainly interested in IP 

protection regulations in EU will 

be introduced into the most important 

traits of the Plant Breeders’ 

Rights, followed by a presentation 

on patents for plant innovations 

and a lecture on trademarks. 

The participants with business 

interests in U.S. are invited to 

deepen their knowledge on patents 

and plant patents and learn from 

the leading American IP experts 

in the U.S.-oriented IP seminar. 

The patentability of plant-related 

inventions and varieties, the limits 

of patent protection and the basics 

of patent litigation, as well as 

trademarks and other forms of 

IP protection in the U.S will be 

approached and explained. The 

late afternoon of April 23 will be 

dedicated to meetings of the CIO- 

PORA Crop Sections. The work 

of the members will be rewarded 

at the welcome reception in the 

picturesque garden of the Palms 

Hotel. 

Working Group 

meetings 

The Working Group meetings on 

DUS and Molecular Techniques as 

well as the Annual General Meeting 

of CIOPORA will take place 

on Tuesday, April 24. Besides the 

internal matters of the association, 

the current situation in UPOV and 

the status of IP Protection for plant 

innovation in various countries 

are on the agenda. The day will be 

rounded up in the familiar atmosphere 

at the AGM Dinner. 

IP Conference 

The International IP Conference 

on April 25 is planned as a 

culmination of the week. Not only 

members, but also guests are welcomed 

to participate in the conference 

and deliver their insights on 

the inter national situation in IP. 

A comprehensive overview of 

the latest developments in the 

Patent and Plant Patent law in the 

U.S.A, a comparative analysis of 

plant patents and Plant Variety 

Rights (PVR), new developments 

in UPOV as well as the situation 

with IP protection in South 

America and Canada are the main 

topics of the conference. 

Educational programme 

The best theoretical learning 

always needs some practice. That 

is why the business excursions for 

ornamentals and fruits will also 

serve as parts of the week’s educational 

programme. Networking 

events for finding new business 

contacts and strengthening of the 

good old ones is on the agenda for 

the closing days of the AGM week 

2012. 

CIOPORA sincerely hopes to 

see all the old and new friends in 

Miami. ||| 

The luxurious Palms Hotel is the perfect 

venue for CIOPORA’s upcoming AGM. 


Marker technology 

DNA markers were 

invented in the 

eighties of the 

previous century. 

They were advocated 

at that moment 

as “New tools for 

an old science” by 

Tanksley in 1989. 

They were (and still 

are...) considered to 

be more performing 

than isozyme and 

morphological 

markers. It was 

stated even earlier 

in 1983 when 

discussing the 

application of 

isozyme markers in 

breeding: 


ornamental and fruit 

breeding: a historical 

perspective 

by Jan de Riek 

plant breeders are 

fortunate to have simple 

“Today, 

techniques available for 

utilizing protein markers in breeding 

programs. These markers coupled 

with the promise of DNA markers 

make the prospect excellent for a 

rapid development of new breeding 

methodologies that take advantage 

of these modern technique.” 

(Tanksley, 1983). 

Among the documented application 

of unmapped markers, he 

listed: 

• Measurement of genetic variability 

• Estimation of outcrossing rates 

• Identification of sexual and parasexual 

hybrids 

• Identification of haploid-derived 

plants from anther culture 

• Introgression of genes from wild 

species 

• Determination of genetic purity 

of hybrid seed lots 

• Identification of breeding stocks 

in perennial nurseries 

• Varietal patenting and protection 

Limitations 

The term ‘marker assisted selection’ 

(MAS) still had to be invented; 

however, markers for ‘gene tagging’ 

and genetic linkage maps were wellknown. 

The tomato map was considered 

to be the most elaborated. 

The first positive report of MAS 

also refers to tomato and dates 

back to 1974 by the introduction 

of nematode resistance in tomato, 

linked to an acid phosphatase by 

Rick & Fobes. 

Perceived limitations at that time 

could be both structural, as only 

a limited number of applicable 

monogenic traits of agronomic importance 

were available, and technological, 

as tight linkage (

RFLP 

The introduction of RFLP gave 

again a boost to the idea of what 

we now call “molecular breeding.” 

(Tanksley et al. 1989). 

“Now restriction fragment length 

polymorphism (RFLP) linkage maps 

are being constructed for most major 

crop plants and these maps provide 

a more direct method for selecting 

desirable genes via their linkage to 

easily detectable RFLP markers. 

The integration of RFLP techniques 

into plant breeding promises to: (1) 

Expedite the movement of desirable 

genes among varieties, (2) Allow the 

transfer of novel genes from related 

wild species, (3) Make possible the 

analysis of complex polygenic characters 

as ensembles of single Mendelian 

factors, and (4) Establish genetic relationships 

between sexually incompatible 

crop plants. In the future, high 

density RFLP maps may also make it 

possible to clone genes whose products 

are unknown, such as genes for disease 

resistance or stress tolerance.” 

Despite the enthusiasm, does this 

mean that at this moment, there 

still is a lack of technological resources 

to meet the demands from 

the breeding industry? Research 

during the last decades has added 

fundamental knowledge from both 

model species and crops. This has 

revealed the mechanisms behind 

many important features e.g. the 

understanding of disease resistance. 

But quite often, extra knowledge 

also demonstrated the complexity 

behind, tempering the initial 

expectations. When considering 

available marker technologies, one 

moved from anonymous markers 

to candidate genes, from 5 

markers per chromosome to an 

average of 1 SNP marker per 1000 

bp and a whole scala of candidate 

genes. Throughput tremendously 

increased by more data points per 

run every year or new technology 

platform introduced. Especially, 

current automated fingerprinting 

systems result in an enormous 

labour reduction. And finally, new 

statistical techniques and appropriate 

software tools fit the need for a 

more sophisticated data analysis. 

>>> 

The costs of implementing molecular breeding can be controlled by doing the simple things in house and outsourcing 

the advanced technology. 

Some rules of thumb 

Some rules of thumb for application of markers versus phenotypic selection 

in breeding for ornamentals and fruits 

New combinations using “exotic” germplasm 

– Aiming for “lucky shots” Phenotype 

– Interspecific hybrids, “far”... Markers will NOT help you 

– Introgression, against background Markers supported by phenotype 

Disease resistance (and other “simple” traits) 

– Reliable screening test Phenotype 

– Few genes, difficult screening Markers 

– Many genes, difficult screening Phenotype supported by markers 

Plant quality, traits related to culture conditions 

– Easy screening Phenotype 

– Difficult screening, clear genetics Markers 

– Time consuming, progeny testing Phenotype but invest in markers 

– Screening and genetics difficult Important traits only: QTL mapping 


Marker technology 

Time periods for valorization of innovations are generally underestimated. 

Better, faster, cheaper 

To sum it up, one can state that 

we can do it better, faster, cheaper, 

more performing. We mainly 

use it for control of the breeding 

framework: to characterize the 

genetic diversity of gene pools and 

wild relatives, for identification 

and variety protection and for the 

characterisation of hybrids, lines 

and purity control. The application 

of MAS is much more limited 

to the introgression of monogenic 

traits, gene pyramiding, selection 

against unwanted background but 

quantitative traits are still a major 

hurdle. The rate of success is likely 

to increase due to developments in 

gene-based marker development, 

more efficient QTL mapping procedures, 

and lower cost genotyping 

systems. However, some fundamental 

issues remain to be resolved, 

particularly regarding complex 

traits, before marker-assisted selection 

reaches its full potential in 

breeding programs. These include 

the development of high throughput 

precision phenotyping systems 

for QTL mapping, improved 

understanding of genotype by environment 

interaction and epistasis, 

and development of publicly available 

computational tools tailored 

to the needs of molecular breeding 

programs. 

Realistic expectations 

In the –omics era, having available 

next-generation sequencing, high 

throughput phenotyping, genotyping, 

expression profiling and 

metabolite assays, biotechnologists 

steadily expand the promising but 

sometimes still very expensive tools 

available for crop improvement. 

Breeders tend to be pragmatic and 

result-oriented; therefore, some 

skepticism and reluctance to start 

intensive and long-lasting initiatives 

in molecular breeding are just 

caution. Moreover, such an effort 

needs to be integrated, intensive, 

long-lasting and avant-garde, affecting 

the total breeding and selection 

procedure, to be successful. A 

gradual, well-planned introduction 

is probably the only way, also 

to keep it affordable for the size 

of industry ornamental and fruit 

breeding has. Keeping in mind the 

overall breeding objectives for a specific 

crop or group of species that 

make the portfolio of a company 

might help to decide. 

The best chance 

for success 

Investments in marker technology 

will always be expensive. 

However, with the risk of missing 

the train, the longer one waits, the 

cheaper the technology and to more 

advanced the (public) available 

knowledge. Are there crop specific 

markers or candidate genes obtainable 

or do they have to be developed? 

If you choose a technological platform, 

it is probably outdated before 

you master it, so, why not have it 

to be outsourced? For technology, 

it is difficult to estimate the return 

on investment because one can 

not foresee completely long term, 

strategic and synergistic effects. 

This also depends on the company 

strategy or tradition for investment 

in breeding: is it considered as high 

versus low risk? Especially, time periods 

for valorisation of innovations 

are generally underestimated. However, 

positive side effects e.g. some 

type of investment enables “other” 

work to be done (not less work), are 

often not taken into account. The 

daily working cost of implementing 

molecular breeding can be controlled 

by doing the simple things 

in house but to outsource advanced 

technology. Also, phenotyping and 

the current selection scheme has a 

cost, one should make an honest 

estimate for it. Only well-planned 

initiatives that are integrated and 

incorporate a clever management 

and mining of all breeding data 

have the best chance for success. ||| 


Quiz 

Test your knowledge of 


Proof your 

knowledge in IP 

matters and win a 

free participation 

in a CIOPORA IP 

seminar. 

Do you consider yourself an expert on IP? 

In order to take part in the competition: 

1. Remove the page with the questionnaire from 

the magazine; 

2. Fill in the answers and send it to CIOPORA 

via email (info@ciopora.org), 

fax (+49 (0)40-555-63-703) 

or mail (P.O. Box 13 05 06, D-20105 Hamburg, 

GERMANY) by May 31, 2012. 

3. The winner of the prize – a free participation in a 

CIOPORA IP Seminar – will be chosen in a raffle 

from all the correctly answered questionnaires. 

4. The winner will be informed directly and 

announced on the CIOPORA website on 18 June. 

www.ciopora.org 

Name: 

Company: 

1. How many members does UPOV currently have? 

2. The most recent member of UPOV is 

3. The only country which still is member 

to the UPOV 1961 Convention is 

Please tick the correct answer! 

4. I can protect my apple-variety in the U.S. by: 

Plant Patent 

Patent 

Plant Breeders’ Right Trademark 

5. The easiest way to protect my gerbera variety 

in the European Union is: 

to seek for PBR protection in all 

27 member-states of the EU 

to seek for CPVR 

to seek for a European trademark 

6. The application fee for a CPVR currently is: 

1,200 EUR 500 US$ 

900 EUR 300 EUR 

7. Which one of the following statements is true: 

Nobody is allowed to breed with an EDV 

An EDV must have separate PBR protection in 

order to enjoy the protection of its initial variety 

In any case an EDV is eligible for PBR protection 

In Australia it’s upon the Secretary in the department 

of the PBR office to decide whether a 

variety is an EDV or not 

8. If material of a variety has been sold or otherwise 

marketed with the consent of the title-holder, the 

PBR for said material is: 

null- and void 

terminated 

exhausted 

suspended 

9. If a variety is not clearly distinguishable from 

an existing protected variety, 

it is an Essentially Derived Variety of this 

initial variety 

it is not eligible for PBR protection 

I can freely commercialize it 

10. Which of the following statements is false: 

A holder of a U.S. Plant Patent can exclude others 

from: 

asexually reproducing the protected plant 

selling the plant so reproduced 

importing the plant so reproduced 

exporting the plant so reproduced 

Please send back the completed questionnaire to 

the CIOPORA office until 31 May, 2012. 

✁ 


Country profile 

Ornamental 

horticulture in the 

U.S.A. is a diverse 

industry. Domestic 

production is 

composed primarily 

of floriculture and 

nursery crops but 

includes many 

related crops, as 

defined by the 

U.S. Department 

of Agriculture’s 

National Agricultural 

Statistics Service 

in its 2009 Census 

of Horticultural 

Specialties. This 

Census provides 

the latest and most 

comprehensive data 

set, as it covers 

all 50 states and 

is the most recent 

survey of many of 

the crop areas for 

the industry. Data 

reflect the 2009 

calendar year and 

were collected in 

2010. Results of 

the Census were 

released as a 

special part of the 

2007 Census of 

Agriculture effort in 

December 2010. 

by Marvin N. Miller 

A look at U.S. 

ornamental horticulture 

The 2009 Census of Horticultural 

Specialties reported 

on 21,585 firms with total 

sales of $11,687,323,000. This 

compared with 23,758 firms with 

total sales of $10,599,298,000 in 

1998, when the last Census was 

conducted. As a result of the 9.1% 

drop in firm numbers and the 

10.3% increase in sales over the 11- 

year period, the average firm sales 

increased over 21% from $466,136 

to $541,456. Still, accounting for 

inflation, which has risen over 30% 

over the 1998 to 2009 period as 

measured by the Consumer Price 

Index (CPI), the effective change in 

real dollars over the period has been 

negative. Yet, not all parts of the 

horticultural specialties have fared 

equally, so a more in-depth analysis 

is warranted. 

U.S. floriculture 

U.S. floriculture is defined to include 

the production of cut flowers, 

cut cultivated greens, potted flowering 

plants (for indoor use), foliage 

plants (for indoor or patio use), and 

the production of bedding/garden 

plants, which includes both annuals 

and perennials. There were 12,009 

floriculture producers reporting 

production and sales in 2009, down 

from 13,809 in 1998, a 13.0% drop 

in producer numbers, and each of 

these segments recorded declines in 

total operations producing for the 

segment. 

Overall, in 2009, producers accounted 

for $5,018,449,000 in 

sales; this was an increase of 12.4% 

from the 1998 sales figure. 

The bedding/garden plant segment 

is by far the largest component 

of this total, accounting for 

$3,149,701,000 (62.7%) of these 

sales (45.9% of these were annuals, 

while 16.8% were perennials). 

Potted flowering plants accounted 

for $871,474,000 of the 2009 sales 

(17.4% of floriculture), foliage 

plants accounted for $509,873,000 

(10.2%), cut flowers accounted 

for $403,254,000 (8.0%), and cut 

cultivated greens accounted for 

$84,148,000 (1.7%). 

Imports 

An aspect of the U.S. floriculture 

industry which may not be immediately 

obvious is that the majority 

of the cut flowers and many cut cultivated 

greens sold in the U.S. are 

imported, with Colombia accounting 

for the biggest share. Other 

countries contributing in a major 

way to the U.S. supply include 

Ecuador, Mexico, the Netherlands, 

and several other Latin American 

countries, though other countries 

from around the globe contribute 

smaller quantities. 

With the exception of Canada, 

which has almost identical 

phytosanitary regulations as the 

U.S., there are very few imports 

of finished plant materials in 

other segments of the floriculture 

(or nursery) parts of the industry 

because of concerns over potting 

media. However, the U.S. does import 

a lot of starter materials from 

Consumer expenditures have surpassed the levels of 2008. 

off-shore producers in the forms of 

seeds, cuttings, bare root materials, 

bulbs, and some tissue cultured 

plantlets. 

Nursery stock 

When it comes to nursery stock 

produced and sold, the Census 

reported a 1.6% increase in the 

number of nursery producers in 

2009 to 8,441 operations from 

the 8,305 operations reporting 

in 1998. Sales increased 24.3% 

over the 11-year period to 

$3,850,363,000 in 2009. (Again, 

this did not keep pace with the 

increase in inflation as measured 

by the CPI.) Broadleaf evergreens 

($793,290,000), coniferous evergreens 

($651,092,000), deciduous 

shrubs ($647,155,000), deciduous 

shade trees ($560,057,000), fruit 

and nut plants ($382,773,000), 

deciduous flowering trees 

($343,651,000), landscaping palms 

($169,395,000), ornamental grasses 

($124,261,000), bareroot herbaceous 

perennials ($12,850,000) and 

other woody ornamentals and vines 

($165,839,000) were the crop segments 

included in the 2009 nursery 

numbers. 


Other crop categories 

Several other crop categories are 

profiled in the 2009 Census as 

well, and many, though not all, 

are related to the floriculture and 

nursery segments of the horticulture 

industry. For example, there 

were sales of $601,657,000 in cuttings, 

plugs, liners, tissue cultured 

plantlets and prefinished plants in 

2009; these were used as inputs 

for floriculture (78%) and nursery 

(22%) crops. There were also sales 

of $48,512,000 in dried bulbs, 

corms, rhizomes and tubers; again, 

these are inputs used by floriculture 

producers. And there was U.S. 

production of flower seeds valued 

at $30,825,000, which went into 

commercial floriculture production, 

as well as consumer applications, 

e.g., seed packets. 

In addition, the 2009 Census of 

Horticultural Specialties reported 

on some other ornamental horticulture 

industry segments. For 

example, $876,847,000 in sales of 

sod, springs or plugs were sold by 

the turf segment of the industry 

in 2009, and this was up 5.0% 

from the 1998 volume. There 

were also sales of aquatic plants 

($287,722,000, down 5.0% from 

1998) and sales of Christmas trees 

($249,821,000, down 2.5% from 

1998) recorded for 2009. 

Food crops 

Though not specifically ornamental 

in nature, the Census also captures 

a few other horticultural segments 

deemed part of the horticultural 

specialties for this survey, as many 

of these crops are greenhouse 

produced. These include food 

crops grown under protection 

($553,270,000, up 148.5% 

from 1998) and the production 

of transplants for commercial 

vegetable and strawberry production 

($330,647,000, up 111.6%), 

vegetable seeds ($89,031,000, down 

4.4%), short rotation woody crops 

($2,173,000, down 82.8%), and 

tobacco transplants ($9,728,000, 

down 6.7%). 

Changes 

Since this Census was conducted, 

the industry has changed dramatically. 

In 2009, the U.S. economy 

The majority of cut flowers and many cut 

cultivated greens sold in the US, are imported. 

was beginning what has been 

termed “The Great Recession,” the 

largest economic downturn since 

the Great Depression of the late 

1920s and 1930s. As a result, firm 

numbers have dropped, as has crop 

value. This has been felt throughout 

much of the ornamental horticulture 

industry, especially in the 

nursery subsector, as new construction 

has been severely impacted 

by the recession. Food crops have 

been an exception, as there has been 

great interest in vegetable and fruit 

gardening in recent years. 

Slow recovery 

Statistically, recovery has begun, 

but most economists believe that 

full recovery will be a long and 

slow event, even though consumer 

expenditures overall have now 

surpassed the levels of 2008, prior 

to the recession. 

Unfortunately for the ornamental 

horticulture industry, the consumer 

is spending differently than prior to 

the recession. Demographic trends 

suggest that the largest group 

of consumers, the Baby Boom 

generation, has begun to retire. The 

generation that follows, Generation 

X, is approximately 11 million 

fewer in number, hence fewer goods 

and services are required overall for 

any age-related consumption, e.g., 

new homes. 

The long-term outlook is positive, 

however, as the following generation, 

Generation Y, is even larger 

than the Baby Boom generation. 

However, it will be a number of 

years before many in this genera- 

Deciduous 

flowering trees 

8.9% 

Fruit and 

nut plants 

9.9% 

Nursery Crops 

$ 3.850 Billion 

2009 Census of Horticultural Specialties 

Other woody 

ornamentals 

and vines 4.3% 

Bareroot herbaceous perennials 0.3% 

Ornamental grasses 3.2% 

Landscaping palms 4.4% 

Perennials 

16.8% 

Deciduous shrubs 

16.8% 

Floriculture Crops 

$ 5.018 Billion 

2009 Census of Horticultural Specialties 

Annuals 

45.9% 

tion are ready to purchase homes or 

the horticultural goods and services 

that can spur long-term industry 

growth. ||| 

Broadleaf evergreens 

20.6% 

Coniferous evergreens 

16.9% 

Potted flowering plants 

17.4% 

Foliage Plants 

10.2% 

Cut flowers 

8.0% 

Cut cultivated greens 

1.7% 



For more than 

20 years Canada 

has had IP 

protection for 

plant varieties, in 

the form of the 

Plant Breeders’ 

Rights Act, based 

on the 1978 UPOV 

Convention. Since 

1998, varieties of 

all plant species 

have been eligible 

for plant variety 

protection 

in Canada. 

Administration 

of the Act is the 

responsibility of 

the Plant Breeders’ 

Rights Office, 

which is part of 

the Canadian Food 

Inspection Agency. 

by Sandy Marshall 

IP protection for plant 

innovations in Canada 

In implementing the legislation, 

Canada opted to have a “breeder 

testing” system for PBR. This 

means that the conduct of comparative 

trials to establish distinctness, 

uniformity and stability (DUS) of a 

new plant variety is the responsibility 

of the applicant. An examiner 

from the PBR office visits the trials 

to verify that UPOV test guidelines 

have been followed and that the 

candidate variety meets the requirements 

of DUS. 

Flower versus 

fruit varieties 

Ornamental plant breeders represent 

the majority of PBR applicants 

in Canada. Of the 305 applications 

filed in 2011, 218 (approximately 

70%) were for ornamental varieties. 

Applications for fruit varieties consistently 

represent about 5% of total 

applications, with approximately 

half of those being from domestic 

breeders. 

The vast majority of Canada’s 

ornamental plant applications are 

from foreign breeders – nearly 98% 

in 2011. For many overseas breeders 

the process of obtaining a breeder’s 

right in Canada has been facilitated 

by the establishment of several 

private companies specialising in 

DUS testing. Independent, third 

party testing has provided a practical 

alternative for international 

breeders when trials are required 

to be conducted in Canada. At the 

present time, these companies are 

testing mainly ornamental and 

fruit varieties; however, there is 

also a company which specialises in 

potatoes. 

Peer review 

After trials have been completed 

and examined by the PBR office, 

the test data, variety descriptions 

and photos are submitted to the office 

for review. Variety descriptions 

Ornamental plant growing in Thunder Bay, Ontario. 

and photos are then published in 

the Plant Varieties Journal, which 

is available to the public via the 

internet. Following the publication, 

there is a 6 month objection period, 

after which, if there are no valid objections, 

a candidate variety can be 

granted rights. This period of peer 

review is an important component 

of Canada’s PBR system. 

In some circumstances, rather 

than growing trials in Canada, 

applicants are able to purchase the 

official results of foreign trials, if 

they were conducted in a UPOV 

member country, following UPOV 

test guidelines. Even in cases where 

the determination of DUS is based 

on a foreign trial, a variety description 

and photograph is published in 

Canada’s Journal and the final decision 

to grant rights is made after the 

expiration of the objection period. 

Enforcement 

As with other forms of intellectual 

property protection, enforcement 

of Canadian breeders’ rights is 

the responsibility of the holder of 

those rights. The Act does not give 

authority to customs officials or 

crop inspection staff to apprehend 

infringers. Several tools are 

utilized by the ornamental and fruit 

industries to enforce breeders’ rights 

including the use of flowering only 

(non-propagation) agreements and 

licensing contracts. There are a few 

companies active in Canada that 

will assist breeders with royalty collection, 

administration, compliance 

and monitoring services. 

UPOV 1991 

Although Canada signed the 1991 

UPOV Convention, the legislation 

remains based on UPOV 78, so 

that the UPOV 1991 Act is not yet 

ratified by Canada. Public consultations 

which have been conducted 

in recent years have indicated 

strong stakeholder support for 

amending the Act. With a current 

political climate that seems favourable, 

supporters of UPOV 91 are 

cautiously optimistic that initiatives 

to include PBR Act amendments 

in the Canadian government’s 

legislative agenda will be successful. 

||| 



The Canadian Plant 

Breeder’Rights 

(PBR) programme 

has a unique system 

for examining 

the distinctness, 

uniformity, and 

stability (DUS) 

of new varieties. 

This system is 

referred to as a 

third party testing, 

or breeder testing, 

where DUS trials 

are not conducted 

at government 

facilities, but 

rather it is the 

responsibility of the 

breeder to organise 

a comparative trial. 

by Brenda Cole* 

Canadian PBRs include 

third party testing 

Third party testing requires a 

breeder to establish a PBR 

trial site within Canada at 

his or her choosing, whether this is 

with a grower or specialised company. 

At times, breeders may utilize 

a growers’ premise to conduct their 

trials, however most growers find 

the PBR requirements too onerous 

and incompatible with core business 

activities. 

In practice, most international 

breeders use companies that are 

specialised in the administration 

of PBR to conduct their DUS trials. 

Most Canadian bred varieties 

are tested by the breeders at their 

nursery, university or government 

research facility. 

Regulatory oversight 

Regulatory oversight of third party 

testing is an important component 

to the success of breeder testing. 

For most crop species the Canadian 

authorities provide the trial coordinator 

with detailed technical forms 

based on UPOV guidelines in effort 

to standardize the variety descriptions 

prepared for candidate and 

reference varieties. The Canadian 

authorities inspect each DUS trial 

in Canada to observe and record 

that the new variety is distinct, 

uniform and stable. During the 

inspection they will also verify that 

the trial meets certain standards set 

out for plant health, plant number, 

and to assess the suitability of the 

reference varieties. All results of the 

examination are published quarterly 

in the on-line Plant Varieties 

Journal to allow an opportunity for 

the public to comment. 

Greater scrutiny 

The DUS trials for many ornamental 

and fruit crops are conducted at 

centralised locations. These trials 

are managed to ensure that each 

new variety can be cross-compared 

Greenhouse grown trials for DUS testing. 

to competitor varieties, as well as 

have an array of reference varieties 

at one location for comparison. 

From a government perspective, the 

program is cost-effective as many 

varieties can be assessed during a 

single inspection period. As well, 

having a number of varieties within 

a species tested at a single location 

allows for greater scrutiny of the 

new candidates against a pool of 

reference varieties. 

Nonetheless, there are a limited 

number of breeding companies 

securing Plant Breeders’ Rights in 

Canada, with several opting not 

to legally protect their varieties. As 

a result, many new varieties that 

are commercially available are not 

assessed for DUS in Canada. A 

company’s decision not to protect a 

variety is most often fiscally based 

and reflects both a company’s 

market share and a variety’s market 

potential in Canada. 

Policy under review 

Canadian policy for DUS examination 

is under review. Currently, 

authorities allow breeders to 

purchase DUS reports, in lieu of a 

trial, for a range of crops including 

the major species such as Pelargonium, 

Poinsettia, pot Chrysanthemum 

and pot Roses. This is an 

attractive option to many breeders 

as it reduces overall costs and 

simplifies the management of their 

IP. The reluctance of the Canadian 

government to allow the purchase 

of foreign test results for all species 

lies in the risks that determination 

of distinctness can be dependent on 

environment. It is highly anticipated 

that Canadian policy in this area 

will change to accommodate more 

species in the future. ||| 

* The author, Brenda Cole is agent 

at BioFlora Inc.. This is a private 

company that specialises in services 

to help breeders protect new plant 

varieties in Canada. In addition 

to administering Canadian Plant 

Breeders’ Rights (PBR) applications, 

BioFlora is active in conducting 

greenhouse and field grown trials 

for DUS testing. 


Enforcement 

GESLIVE is a nonprofit 

organisation 

owned by plant 

breeders. As a 

services subsidiary 

of ANOVE, the 

association 

representing the 

plant breeding 

industry in Spain, 

it is dedicated 

to managing 

and defending 


rights of new plant 

varieties. 

The objective of this 

article is to provide 

some examples 

of the successful 

defense of 


rights of new plant 

varieties, from a 

global perspective. 

by Antonio Villarroel* 

Worldwide successful 

enforcement actions 

The first condition for effectively 

defending rights 

of a protected variety is the 

capacity to determine when those 

rights have been breached. For this 

purpose we need tools which allow 

us to confirm whether suspicious 

material belongs to our variety but 

has nonetheless been reproduced 

illegally. 

Deficiencies in 

the legal system 

The aforementioned issues are especially 

pertinent for the ornamental 

and fruit sectors, regarding their 

particular characteristics when 

compared to other agricultural 

sectors. The added value provided 

by the breeder is essentially perceived 

in the final product, which is 

mostly sold when fresh. The flower 

and fruit industry are largely global, 

and have witnessed a gradual progression 

of production areas from 

the consumer countries to third 

party countries, many of which the 

protection of intellectual property 

rights is evidently inadequate, either 

due to deficiencies in the legal system 

or delays in their procedures. 

These factors together can make it 

exceedingly difficult for the breeders 

to exercise their rights against 

unauthorised third parties. 

Genetic identification 

Fortunately, in recent times the 

techniques for genetic identification 

of varieties have become highly 

refined as a result of molecular 

biomarkers (SNPs or micro satellite 

types) which permit breeders to 

conclude with very small error 

margins, if virtually any vegetable 

material or a sample of material 

belongs to one of their protected 

varieties. The acceptance of that 

kind of analysis in legal cases for 

the infringement of plant breeder 

rights appears to be being consolidated 

in many countries, at least as 

prima facie evidence which reverses 

the burden of proof onto the other 

party. It is important to take into 

account however, that certain 

safeguards can help to ensure the 

legal value of such analyses, such 

as being able to track the source of 

the samples; the impartiality of the 

laboratory which does the analysis. 

Adequate licensing 

policy 

One factor which in our experience 

is crucial for the global enforcement 

of plant breeder rights, especially 

where the variety has been reproduced 

in third party countries, is 

the use of tools to track the product 

and identify its source as either legitimate 

or otherwise. An adequate 

licensing policy, together with 

effective contracts architecture, is a 

Geslive found out that the 

‘Nadorcott’mandarin was 

extended through numerous 

regions of Spain and that 

many growers and farmers 

were reproducing or planting 

it illegally. 

key factor in verifying the legitimate 

origin of products on the market. 

Attention should be paid however 

to the antitrust regulations as not all 

stipulations will comply and we may 

find it problematic, for example, to 

establish “black lists” of producers 

and traders suspected of violating 

our intellectual property rights. 

In order to guarantee the legitimacy 

of our products in the market, we 

have, in some cases, developed 

identification systems based on 

specific labels linked into a database 

accessible via internet. 

These systems not only make a 

huge contribution to combating 

illegal production, but also serve 

to provide greater control for plant 

breeders over licensed production 

and the collection of royalties based 

on the sales of end products (flowers, 

plants or fruit). 


Successful cases 

Due to the aforementioned combination, 

the creation of a genetic 

data base for protected varieties 

which facilitates the rapid and 

secure identification of samples in 

combination with the system for 

tracing products from the originating 

plant through to the final 

product in the market, we have 

recently been able to mount an 

efficient defense of the property 

rights of our members and customers 

with respect to breaches of 

their plant breeder rights. 

The following are some good 

examples: 

In Spain, the control of the production 

of the protected mandarin 

wvariety “Nadorcott”. 

In this case, when GESLIVE was 

asked by the breeder to manage 

its Spanish licenses, we found that 

this variety was extended through 

numerous regions of Spain and that 

many growers and farmers were 

reproducing or planting it illegally. 

Regarding the impracticability of 

starting legal action against such 

a large number of individuals and 

entities, the only viable strategy 

was to invite an increasing number 

of these growers to voluntarily 

regularise their orchards, and to 

support them in marketing their 

products under specific labels, while 

at the same time moving against 

the distribution of fruit from illegal 

sources –or, in other words, that 

which does not carry such a label. 

The result of these actions was 

that after four years, 800 growers 

Greenhouse trials of new lettuce varieties, Spain. 

were legally producing the variety, 

involving more than 2 million 

plants and 40 traders. 15 million 

euros were recovered, which had 

originally been considered beyond 

our reach. 

This same system has been introduced 

in other countries where 

“Nadorcott” is grown under license 

(in Morocco, South America, South 

Africa etc.), which has allowed 

the breeder both to inhibit illegal 

propagation and production and 

to detect and intercept exports of 

illegal fruit produce to the EU. 

The fight against the illegal production 

of protected seedless table 

grape varieties in various countries 

(Spain, North Africa, etc.). In this 

case, the production of new high 

value varieties of seedless table 

grapes has been afflicted of late 

by increasing multiplication and 

illegal production in a number of 

countries. Unfortunately, the legal 

procedures in the countries of 

origin tend to be difficult, exceedingly 

slow and of uncertain outcome. 

This has obliged the breeders 

to adopt a meticulous system of 

licensing together with systems 

for identifying legitimate products 

in the market, involving tracking 

them from authorized orchards set 

up under license. These tools have 

made it possible to detect a number 

of fruit dispatches from illegal 

producers, in many cases identified 

by customs and required to be 

legalised. 

Due to these actions, European 

retailers have also become increasingly 

aware of the importance of 

collaborating with the breeders and 

respecting their intellectual property 

rights, as the only way of assuring 

the added value from the new 

varieties of fruit and flowers. ||| 

* Mr Antonio Villarroel is a lawyer 

and general manager of GESLIVE, 

A.I.E. 


50617 Wuesthoff-Logo 10.11.2005 9:10 Uhr Seite 1 

CIOPORA Members 

NEW HORIZON ORCHIDS 

OS International 

PROCOVAMI 

ROYON CONSULT 

Royal Berries S.L. 

SUNNY GRONNEGYDEN ApS 

La Villetta Srl 

advocaten 

Beijing Hengda 

Ciopora Suppporters 

CIOPORA encourages the pursuit of joint 

activities in areas of mutual interest with its 

so-called supporters. Contrary to the CIOPORA 

members, a CIOPORA Supporter doesn’t represent 

a breeding company or law firm but can be, for 

example, a grower, a propagator, or a supplier of 

software. CIOPORA’s current Supporters are: 

Distel Software, André Briant and Nevado Roses. 


April 2012 • www.ciopora.org 

The business magazine for horticultural plant breeding 

Colofon 

The CIOPORA Chronicle is a special edition of 

CIOPORA and the monthly business magazine on 

worldwide floriculture FloraCulture International. 

All rights reserved © 2012. 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. 

Editorial & Administration Offices 

FloraCulture International B.V. 

Business address: Legmeerdijk 313, 1431 GB Aalsmeer 

Postal address: Postbus 1081, 1430 BB Aalsmeer 

T (31)152 136 764 

Editor-in-chief: Ron van der Ploeg (ron@floracultureinternational.com) 

with the kind assistance of Dr. Edgar Krieger (edgar.krieger@ciopora.org). 

Contributing writers: Brenda Cole, Travis Boone, Bruno Etavard, Ben Duffett, 

Robert Jondle, Philippe de Jong, Anna Kaehne, Jaap Kras, Edgar Krieger, 

Thomas Leidereiter, Andrea Mansuino, Sandy Marshall, Marvin Miller, 

Geoff Needham, Gabriela Paiva, Oscar Peters, Jan de Riek, Antonio Villarroel 

and Gert Würtenberger. 

Photography: FloraCulture International and CIOPORA 

Cover photograph: Bianca Fenne (with special thanks to Lex+) 

Publisher: FloraCulture International B.V. (jaap@floracultureinternational.com) 

Printer: Habo DaCosta 

Designers: Dirk van der Burgh, Aryen Bouwmeester 

Advertising Sales Offices 

Dennis Seriese (dennis@floracultureinternational.com) 

Angie Duffree (angie@floracultureinternational.com) 

M (31) 62 21 65 220 

IP protection is a winning 

strategy for plant breeders 

How much open access 

page 26 can breeders afford? 


page40 ornamental and fruit breeding 

CIOPORA Members & Supporters 

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. The organization has currently 121 members 

among which individual breeders, breeding companies, lawyers and 

royalty administration services. Top priority of CIOPORA is the constant 

development of systems of protection which both, international state 

organisations and single states, have provided for the protection of the 

intellectual property concerning ornamental and fruit plants. CIOPORA 

acts as a strong voice to governments on behalf of the industry. The board 

invites you to join CIOPORA. Membership is open to anyone breeding 

vegetatively reproduced ornamental and fruit varieties or having an 

interest in IP-Protection for such crops. However, each candidacy is 

subject to the CIOPORA Board's approval.To become a member email to 

info@ciopora.org or fax to +49 40 555 63 703 

HOW TO BECOME A SUPPORTER 

You are a natural person or company prepared to support and foster 

the objectives, purposes and policy of the association, but do not fulfil 

the requirements for membership in CIOPORA? Please contact CIOPORA 

at the address as featured on this page. 

CIOPORA’s current Supporters are: Distel Software, Hawita Gruppe, 

FloraCulture International, André Briant and Nevado Roses. 

Contact details 

For further information about 

CIOPORA please contact 

the administrative office in 

Hamburg. 

CIOPORA 

P.O. Box 13 05 06 

D-20105 HAMBURG 

GERMANY 

T (49) 40 555 63 702 

F (49) 40 555 63 703 

www.ciopora.org 

info@ciopora.org 

Advertising Index 

COMPANY PAGE WEBSITE 

Altius Advocaten ............................................................18 ...................................... www.altius.com 

Beijing Hengda Agforest ..............................................21 ..................... http://yupvpeg.oinsite.cn/ 

CIOPORA ....................................................................26-29 ....................................www.ciopora.org 

Danziger “Dan” Flower Farm ........................................3 .................................www.danziger.co.il 

Fides ..................................................................................10 ............................................ www.fides.nl 

Jondle Associates ..........................................................18 ..............................www.jondellaw.com 

Lex+ ...................................................................................10 ................................................ www.lex.nl 

Meilland International ...................................................52 ................................ www.meilland.com 

COMPANY PAGE WEBSITE 

NIRP International ...........................................................18 .................www.nirpinternational.com 

Plant Haven International ...............................................7 ........................... www.planthaven.com 

Royalty Administration International..........................21 ......................www.rai-worldwide.com 

Selecta Klemm GmbH & Co. KG ...........................16-17 ..........................www.slectawordl.com 

Smthuijsen, Winter & de Vries ....................................38 ..................... www.swdv-advocaten.nl 

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

Vondst Advocaten ..........................................................38 ........................... www.vondst-law.com 

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

Visit FloraCulture International advertisers on the internet by linking to their Websites from our Digital Online Advertiser Index at 

www.floracultureinternational.com. For readers who do not have internet access, please send your request for additional information from 

any of our advertisers to FloraCulture International B.V. (Vondelstraat 162, 1054 GW Amsterdam, The Netherlands). Be sure to include your name, 

company name, address, faxnumber and the name(s) of the companies about which you would like to receive additional information.

2012 CIOPORA Chronicle

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