2011 CIOPORA Chronicle - the 50th Anniversary Edition

Patents
In the plant breeding
world patents are
often viewed as
dangerous. Plant
variety rights would
be good and green,
whereas patents
would be evil and
red as they present
a threat for the
continuous flow
of innovation. For
the past few years,
there has been
a lively debate
about the role of
patents in relation
to plant breeding
and the question
whether there is
a need to curtail
the use of patents
in relation with
plant innovation.
What exactly is the
problem and is there
a solution?
by Tjeerd Overdijk
Barbarians at the
gates – and many
already passed!
In principle, patents and PVRs
are two different legal titles
which aim to protect different
subject matter. The most basic
objective of the patent system is further
innovation and the enhancement
of technology in general. We
like inventors. They bring us people
new and useful things or processes.
As an incentive we give inventors an
award in the form of a monopoly
for the exploitation of the invention
for a certain period of time.
Similar observations are true for
plant variety protection: breeders
of new varieties of plants help the
enrichment of the genetic variety
which is beneficial for the worldwide
food supply. As an incentive
to keep breeding we give them a
monopoly for a certain period of
time in order to exploit their new
varieties.
So the rationale for patents and
plant variety rights are largely the
same.
Yet, a considerable difference exists
with respect to the object of the
protection.
Some objects have been excluded
from patent protection, e.g. plant
or animal varieties or essentially
biological processes. We do not
have such exclusions in PVR laws.
Never theless PVR laws are more
limited in scope: they only relate
to plant varieties. Patents can have
a very wide scope in that they
can relate to any kind of object or
process. This is a reason why PVRs
are generally seen as giving only
a weak form of protection. Patent
protection, on the other hand, is
viewed as providing a strong form
of protection as it offers a much
broader scope of protection and is
able to cover innovations that can
be applied across a multitude of
varieties.
Practical examples
There is probably a few mechanisms
that may explain why we are hearing
more and more about patents in
the plant breeding world. Breeding
companies of all types and sizes
have constant need to cut costs.
One of the ways to achieve reduced
costs is increased economies of
scale. Secondly, we see a rapid
development of important biotechnological
innovations (e.g. GMOs,
marker assisted breeding etc.).
These two factors together lead to
an increased desire for a broader
scope of protection for innovative
products or processes. As a result
we have seen the first legal battles
involving patents related to plant
breeding, plants or even harvested
material or derivative products.
An example is the chicory case
between Enza Zaden and Vilmorin
which was litigated in the Dutch
courts. Enza lost this case because
it was unable to prove the infringement,
but the patent was potentially
a real headache for Vilmorin.
Then we had the famous Monsanto
Roundup Ready cases in UK,
Spain, DK and NL.
Monsanto acted against the importation
by soy meal trader Cefetra
and others of soy meal produced
from the well-known Roundup
Ready soybean in Argentina, where
there is no I.P. protection for the
Roundup Ready.
Monsanto was able to prove the
presence of the patented DNA
sequence which encodes for CP4-
EPSPS in the soy meal. Cefetra argued
that the DNA may be present
in the soy meal, but not as an
isolated substance. According to the
defendants the DNA present in the
soy meal could no longer express
its function – soy meal is basically
dead material.
The court had to decide whether
Monsanto would be able to object
to the trading of the soy meal solely
on the grounds that the DNA is
present in the soy meal. In response
to preliminary questions from the
Dutch court the ECJ ruled that
there cannot be patent protection
when the patented product
is contained in the soy meal but
does not perform the function for
which it is patented. The ECJ also
ruled that Article 9 of the Directive
brings an exhaustive harmonisation
of the protection it confers, with the
20 www.CIOPORA.org | CIOPORA Chronicle April 2011