2012 CIOPORA Chronicle

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. |||
CIOPORA Chronicle April 2012 | www.CIOPORA.org 19