2012 CIOPORA Chronicle

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 >>>
CIOPORA Chronicle April 2012 | www.CIOPORA.org 27