2012 CIOPORA Chronicle

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.” |||
CIOPORA Chronicle April 2012 | www.CIOPORA.org 29